After the State of the Union, a question hung out there: how would the supreme Court respond to President Obama. Well, they wouldn’t. They couldn’t. They shouldn’t. Though we have checks and balances, our branches are not co-equal. The President’s bully pulpit and executive authority truly is checked only by Congress. To any supreme Court decision the President may (and has in the past said…), “they have their decision, let them enforce it.” Thus the judges show deferential silence. That does not mean, however, a Justice cannot make a rather smart, off-the-cuff comment in rebuttal. Here’s what Clarence Thomas said yesterday to a group of law students concerning Citizens United: (more…)

Mr. Obama has his opinion; now let him render it.

Keith is apparently displeased that political speech is almost as free as pornography.

Today is the 37th anniversary of Roe v. Wade (1973), the U.S. Supreme Court opinion in which the court ruled that the Constitution’s right of privacy requires a right to abortion. Although prolifers decry this decision, few have rarely examined the logic of the opinion. For this reason, my 2006 article may be of interest: “The Supreme Court, Roe v. Wade, and Abortion Law,” Liberty University Law Review 1.1 (2006): 37-72. It is a revised and updated version of the previously published article, “Roe v. Wade: Its Logic and Its Legacy.” The Southern Baptist Journal of Theology 7.2 (Summer 2003): 4-28. The Liberty article was again revised and updated when it was published as chapter 2 of my book, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007)

(Originally posted on the Return to Rome blog)

This comes from a recent “conversation” between Justice Scalia and Justice Breyer hosted by the University of Arizona. The Justices were discussing the Constitutional interpretation; specifically the merits of originalism v. values-based interpretation.  Justice Scalia delivered this line after Justice Breyer touted Brown v. Board of Education as the coup de grace of originalism:

“Hitler developed a wonderful automobile,” [Scalia] went on. “What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test.”

H/T to Mirror of Justice

I know I would be if I spun this wildly.

[Deal] Hudson argues that the public option will end up extending federal funding for abortion. He says that the courts will step in even if Congress doesn’t mandate abortion coverage in any such plan. Mind you, the courts have not stepped in to over-rule the Hyde Amendment lo these many years. The federal health insurance coverage that members of Congress enjoy does not include abortion coverage. Federal Medicaid funds do not support abortion. So, why would the federal option, which would be modeled after the insurance that members of Congress get, necessarily end up mandating abortion coverage? Hudson does not say. (more…)

It’s always nice when a supreme Court justice, Scalia, says we should have less lawyers:

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

Via Volokh, Justice Stevens has confirmed to AP that he his hired only one clerk for this upcoming term. This could signal his intention to step down at terms’ end. Or, it could mean he wants to do more of the actual work himself. At 89.  Somewhere, Oliver Wendall Holmes rejoices that his record for oldest-serving member of the court may yet be safe.

Our great, glorious and most esteemed Founder is on fire in the blogosphere. Over at First Things, he has passed along this wonderful Green Bag review of the latest term of the Supreme Court. And before you make it to the article, let me make a pitch for the Green Bag: it’s a wonderful and entertaining journal of legal humor and history, re-founded by Ross Davies over at GMU School of Law. The Green Bag has been known, more often than not, to send you a Supreme Court Justice Bobblehead as a treat for the subscription. It’s not guaranteed, but who WOULDN’T want a mini-Niño nodding away on your desk to your self-proclaimed brilliance! To quote the article: (more…)

Virginia Democrat Senator Jim Webb has had an amazing change of heart since defeating Republican George Allen in 2006. Webb—a former Republican—ran as a “moderate” (snicker) Democrat and defeated once Presidential hopeful Allen by less than 9000 votes out of 2.4 million cast.

In Webb’s excellent history of the Scots-Irish in America, Born Fighting, Webb—himself a proud Scots-Irish—writes the following:

“. . . a feeling that the culture so dramatically symbolized by the Southern redneck was the greatest inhibitor of the plans of the activist Left and the cultural Marxists for a new kind of society altogether.” (Page 295.)

“In the age of political correctness and ultraethnic sensitivities, it has become delicate, to say the least, to celebrate many of this culture’s hard-won accomplishments when teaching American history in today’s public schools.” (Page 17.)

“The Scottish people did not care much for the larger crowd and they especially did not care much for elites.” (Page 42.)

“America’s elites have had very little contact with this culture.” (Page 18.)

“. . . they ignore them at their peril.” (Page 19.)

Despite these condemnations of “elites” and “political correctness”, Webb apparently has no problem enthusiastically supporting the elitist and politically correct agenda of the Obama administration. He has also apparently surrendered his manhood to the will of Queen Pelosi in the House and Grandma Reid in the Senate. Case in point: Despite Webb’s strong lip-service support for the 2^nd amendment, he voted with the rest of the Democrat elites to confirm Judge Sotomayor to the Supreme Court; ignoring the wise Latino woman’s hostility toward gun rights. I have to assume that the price for Webb obtaining more political power within the Democrat Party was his willingness to sing soprano in a voice similar to that of Harry Reid’s. (Doesn’t Reid’s voice remind you of a grandmother battling menopause?)

Sotomayor’s speeches, along with many of her decisions, would certainly lead an objective observer to conclude that she is what Webb would describe as someone with “ultraethnic sensitivities” and a member of “the activist Left and the cultural Marxists”—a group which he clearly targets for derision and contempt in his book. What’s happened to Senator Webb?

Now comes Webb’s tucking tail and running off to East-Asia (at taxpayer’s expense) during the August recess. Is this courageous, highly-decorated Vietnam War veteran afraid to face his constituents because of the boiling anger over Obama’s health care “reform” or, has he become an elitist who just doesn’t want to have much “contact with this culture?” Hey Senator, as you’ve pointed out, many of your constituents don’t care much for elites. You ignore us at your (political) peril.

Senator Webb, call your office. There are some great inhibitors that would like to talk to you.

Robert P. George, the McCormick Professor of Jurisprudence at Princeton University, published an op-ed piece in this morning’s Wall Street Journal. It concerns the issue of same-sex marriage and the courts. Here is an excerpt:
(more…)

…have in common? Professor Allison Hayward giving her opinion and understanding of next term’s campaign finance case, Citizen’s United, on the docket. I wish she had pulled these stunts in class:

Thanks, Zywicki!

I had been meaning to dig deeper into the issue of Senatorial deference for the President’s Supreme Court nominations, but I simply do not have the time to do a research paper on such a mundane issue.  Long story short, though, I agree with Mike Rappaport , Randy Barnett, and Ramesh Ponnuru.

First Rappaport addresses the question, “Is the President entitled to deference on Supreme Court nominations?” (more…)

During Judge Sotomayor’s confirmation hearings, I have been interested in various Republican Senators’ criticism of the view that the individual right to bear arms in the Second Amendment may not apply against the States.  What has specifically interested me is that the doctrine of incorporation, as we have it today, means that certain provisions of the Bill of Rights apply against the States through the 14th Amendment’s due process clause. I have not come to a firm conclusion as to whether, as matter of original meaning, the 14th Amendment really applied any provisions in the Bill of Rights against the States.  But I am certain that if it did, it was not through the amendment’s due process clause. To hold otherwise necessarily requires one to concede that substantive due process is a legitimate legal doctrine.  Unlike many Senate Republicans on the Senate Judiciary Committee, I do not believe that substantive due process becomes legitimate merely because its application would compel a result that I may like.

(more…)

One thing is becoming clear in the early rounds of questioning at Judge Sotomayor’s confirmation hearing:  Judge Sotomayor appears to insist that her past words be interpreted according to her original intent.  I wonder if she would insist that the words written in the Constitution be interpreted accordingly?

The New York Times today has an editorial calling for tough questioning of Sotomayor.  When you get to the actual questions the NYT wants to hear asked, things get rather comical.

Some of Judge Sotomayor’s inclinations can be read from her numerous judicial opinions, but others cannot. The Senate should assure itself that she recognizes the constitutional right to privacy and the correctness of the line of cases that includes Roe v. Wade. It should ensure that she believes in appropriate limits on presidential power, an area in which the court has played a critical role in recent years, and that she is respectful of Congress’s authority, which has taken a beating lately.

Holy Profiles in Journalistic Courage!  We’ve got to make sure she’s sufficiently to the left.  Never mind the travesty of the Ricci case or Sotomayor’s racialist thinking.

If we had an equivalent in the Scalia confirmation, it would sound something like this:

Senator X:  Mr. Scalia, how can we be sure you are an originalist?  Have you ever been hammered at a Constitution Day party?  Do you have any household pets nicknamed “Publius”?

Senator Y:  Much has been made of your membership in Opus Dei, but I’m not quite satisfied.  You haven’t scratched once during this entire process, so I can’t believe that hairshirt is truly uncomfortable.

It’s always amusing to see pro-aborts get caught expressing their unfiltered thoughts.  Here is Justice Ginsburg, in an interview with the New York Slimes.

Q: If you were a lawyer again, what would you want to accomplish as a future feminist legal agenda?

JUSTICE GINSBURG: Reproductive choice has to be straightened out. There will never be a woman of means without choice anymore. That just seems to me so obvious. The states that had changed their abortion laws before Roe [to make abortion legal] are not going to change back. So we have a policy that affects only poor women, and it can never be otherwise, and I don’t know why this hasn’t been said more often.

Q: Are you talking about the distances women have to travel because in parts of the country, abortion is essentially unavailable, because there are so few doctors and clinics that do the procedure? And also, the lack of Medicaid for abortions for poor women?

JUSTICE GINSBURG: Yes, the ruling about that surprised me. [Harris v. McRae — in 1980 the court upheld the Hyde Amendment, which forbids the use of Medicaid for abortions.] Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

We’ll leave aside for now the constitutional ignorance of a sitting Supreme Court Justice and focus on this particular comment: “there was concern about population growth and particularly growth in populations that we don’t want to have too many of.”

First of all, let’s put to rest right now the predictable retort – no, there is no “context” in which this comment can be explained away, so don’t even try it.

Second of all, there is no way to charitably interpret this comment away.  She is, at a minimum, talking about poor people.  Extrapolating from the fact that a substantial percentage of the poor are black, she could be talking about the black population.  But we’ll be “charitable” here and infer that Justice Ginsburg is merely stating that the poor are a population that we don’t want to have too many of.  But it seems to me that the more humane way to achieve a reduction in the number of people in poverty is to create economic opportunities, not to promote genocide.

I’m starting to think that her middle name is just a typo away from indicating her true personality.

The Supreme Court has just ruled, in a 5-4 decision, for the firefighters in Ricci, et al. v. DeStefano, et al.

Follow live updates via SCOTUSblog.

Update: Here’s a link to the opinion.

Newsweek has an interesting Q&A with Robert Bork regarding Judge Sotomayor’s nomination to the Supreme Court.

Here are some of the questions and answers I found interesting:

Newsweek: Is there a principled definition of what judicial activism is?

Bork: Sure. A judge is an activist when he announces principles or reaches results that cannot plausibly be related to the actual Constitution.

…

Newsweek: Your own confirmation hearing in 1987 is often called a watershed for the process.

Bork: It wouldn’t have been but for the fact that I looked like the fifth vote to overrule Roe v. Wade. And in modern politics, that is a subject that raises hysteria.

Newsweek: Would you have been the fifth vote to overturn Roe v. Wade?

Bork: Oh, of course. It’s one of the most corrupt decisions I’ve ever seen.

Newsweek: Was it your view that the law on abortion should be left totally to the democratic process?

Bork: I oppose abortion. But an amazing number of people thought that I would outlaw abortion. They didn’t understand that not only did I have no desire to do that, but I had no power to do it. If you overrule Roe v. Wade, abortion does not become illegal. State legislatures take on the subject. The abortion issue has produced divisions and bitterness in our politics that countries don’t have where abortion is decided by legislatures. And both sides go home, after a compromise, and attempt to try again next year. And as a result, it’s not nearly the explosive issue as it is here where the court has grabbed it and taken it away from the voters.

It is really a shame this man is not on the Supreme Court.

For all the talk about Sotomayor’s “wise Latina” speech, Heather Mac Donald raises a point that few have mentioned: the speech is very poorly written. Back in 2005, I agreed with the concern that Harriet Miers’ writing was simply inept, and Sotomayor’s writing isn’t that great either. To be sure, she’s replacing someone who tended to annoy other Justices with all of his excess verbiage, so perhaps it’s a wash in that regard.

What about the “wise Latina” line, though? Here’s the full paragraph:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

On one reading, Sotomayor is simply making the commonplace point that the diverse experiences of judges will inevitably affect how they view certain types of cases. Although the “more often than not” is eye-opening, the surrounding paragraphs seem to limit the discussion to “race and sex discrimination,” and it makes sense that someone from a minority background would see her own perspective as being relevant and helpful in such cases.

That said, it would be more consistent if she had said that a “wise Latina woman” might reach a “different” — not “better” — conclusion in such cases. After all, Sotomayor herself said that she agreed with a law professor’s view that “there is no objective stance but only a series of perspectives — no neutrality.” On that view, a “wise Latina woman” can’t make an objectively better decision in the first place.

In any event, I was rather more intrigued by a couple of other comments. First, earlier in the speech, she says, “Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.”

In the 1994 speech from which this is all copied, Sotomayor mentioned only gender — and specifically cited Carol Gilligan, famous for difference theory. She followed up later with a sentence that was deleted from the later rendition of the speech, explaining that a “better” decision would be “a more compassionate, and caring conclusion.” [The superfluous comma is hers.] So in that version of the speech, she is leading up to the common, although not uncontroversial, claim that women are more “compassionate and caring” than men. But here she seems to be suggesting that not just women, but also “minority judges” might have basic differences in logic and reasoning. Hmmm.

Second, note that the “wise Latina” paragraph begins with these words: “Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.”
Now this may be just yet another example of sloppy writing (again, the 1994 speech mentioned only gender here), but she’s suggesting that “national origins” could involve “inherent physiological . . . differences” that are relevant to judging, and that she gives more weight to this possibility than does her colleague.

Now as to gender, the inherent physiological ability to become pregnant could influence a judge’s perspective in, say, cases under the Pregnancy Discrimination Act. But national origin? I’d be curious to know what such “inherent physiological” traits she has in mind there.

Very cool.

(link via CfG)

Uploaded on the Senate Judiciary Website is this introduction (PDF) delivered by Sotomayor to a talk given by Scalia at Hofstra Law School, two days before 9-11. Her thoughts generally are on Legal Ethics, and in her particulars she quotes not only Learned Hand and Oliver Holmes, but a certain Robert Bork from his book the Tempting of America. Her views of legal ethics both encompass a minimal professional standard and the idea that sometimes our ethical responsibilities compel us to do things contrary to our personal moral responsibilities (the example she gives here is defending an indigent client whose actions we are defending are morally repugnant…somewhat flawed her example is in my opinion, but I digress). The true meat in this speech is her respectful and subtly coy articulation of Justice Scalia’s philosophy: (more…)

Two high school students on a football recruiting trip recently sat down in coach class next to a gentleman who was quite knowledgeable about Cornhuskers’ football. After several minutes of conversation, the students who were not as up on their American civics, realized they were talking with Clarence Thomas. So what does the court’s most empathetic justice do? He accepts an invitation later from the students to speak at their high school graduation.

EPIC WIN!

(Posted on What’s Wrong With the World)

“The ink is black, the page is white
Together we learn to read and write
A child is black, a child is white
The whole world looks upon the sight
A beautiful sight.

And now a child can understand
That this is the law of all the land
All the land.

The world is black, the world is white
It turns by day, and then by night
A child is black, a child is white
Together they grow to see the light
To see the light.

And now at last, they plainly see
They’ll have a dance of liberty, liberty.”

–David Arkin and Earl Robinson (recorded by Three Dog Night)

Consider two cases about two tests. The first, Bartlett v. the New York State Board of Law Examiners, is from 1997. The other, Ricci v. DeStefano, is presently on appeal before the U. S. Supreme Court, which will issue its opinion sometime soon. In the first case, the jurist who issued the ruling was Judge Sonia Sotomayor when she served on the bench of the Federal District Court of the Southern District of New York. In the latter case, the Supreme Court will be assessing a Second Circuit Court of Appeals ruling in which Judge Sonia Sotomayor participated.

What follows is a summary of the first case, found in the article authored by Ruth Shalit, “Defining Disability Down,” published in the August 25, 1997 issue of The New Republic:
(more…)

Patrick Ruffini’s take on how to approach the Sotomayor nomination is one which most closely resembles my own.  Like me, Ruffini is not advocating an all-out blitz, but rather a vocal if restrained “get it on the record” approach.  I think his first point is most salient. (more…)

Let’s hope there is indeed cause for their concerns.

Not long ago the Supreme Court was content to let the legislative and executive branches handle national security issues. In light of the Supreme Court’s increasing intrusion into national security policy it is prudent to question candidates regarding their national security expertise. Glen Sulmasy, a member of the U.S. Coast Guard Academy law faculty, lists five questions to ask Sotomayor. They are as follows: (more…)

Prepare yourselves for a shock, but Grima Wormtongue Doug Kmiec has come out in support of Sonia Sotomayor.  I’ll give you a moment to recover from the surprise. (more…)

… from the left?

Thankfully, it would appear that the majority of those in the know believe that Sotomayor isn’t the type of justice who will become an intellectual force for liberals on the Court. However, it’s bad enough that she will be a reliable vote.

“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 anybody who has been reading up on Sonia Sotomayor, this quote has become the elephant in the room.  The line was delivered during the Judge Mario G. Olmos Law and Cultural Diversity Lecture at UC Berkeley School of Law in 2001.

The problem with this line is obvious — it’s one thing to deliver platitudes about diversity, while it’s quite another to suggest that a female, Hispanic jurist has superior life experiences and will thus reach better legal conclusions. The former is P.C. blather, the latter is vile, racist dreck. If a white male had said the opposite, they’d be rightly decried as a bigot, not elevated to the highest court in the land.

Even worse,  Sotomayor’s vote in the New Haven firefighters case tends to suggest that she sets a very high bar, if indeed she sets one at all, for committing racial discrimination against whites. In that case, an exam for promotions was thrown out because too few minorities scored high enough to be promoted.  The decision was based entirely on racial outcomes and caused harm to white firefighters. Sotomayor apparently did not see any equal protection violation.

In other words, Sotomayor is a radical on racial issues and arguably a bigot herself in her attitudes towards white males. Way to pick ‘em, Obama.