Thursday, May 28, 2009

Sotomayor: Choice Belies Critics, Confounds Opponents

      Judge Sonia Sotomayor was at the top of President Obama’s short list of potential Supreme Court nominees even before Justice David H. Souter’s decision to retire. And from the start, conservative groups were denouncing her as a “liberal judicial activist.”
      The ideological name-calling had little by way of substance. The three main counts consisted of a passing remark suggesting that appellate courts make policy — made in contrast to the role of trial courts; a speech voicing the “hope” that “a wise Latina judge” would “often” make a better ruling than a wise white male because of her experience and background; and her supposedly perfunctory rejection, as part of a panel of three judges, of a reverse discrimination case brought by white New Haven, Conn., firefighters.
      True, at least one conservative critic — National Review Online’s Ed Whelan — examined Sotomayor’s record to document decisions in which she had been reversed by the Supreme Court. He found three: the high court's 5-4 decision rejecting an inmate’s constitutional damages claim against a private prison company; the 8-0 decision preempting state securities law suits; and a 7-2 decision favoring free-lance writers’ claims to copyright protection for works included in on-line data bases. Had Whelan updated his list, he could have added a fourth: a 5-4 decision in April allowing the Environmental Protection Agency to use cost-benefit calculations in some utility plant regulations.
      To call Sotomayor’s overturned rulings in these cases the stuff of liberal judicial activism is to strip the term of any pretense of meaning. And now that Sotomayor has been chosen, a closer examination of her record is putting the lie completely to the accusation. On balance, Sotomayor falls to the left of ideological center on many legal issues, but not all. And, as SCOTUSBlog founder Thomas Goldstein aptly observed, she emerges from her 400 decisions on the Second U.S. Circuit Court of Appeals as no legal visionary but a judicial craftsperson.
      The White House put its own spin on Sotomayor’s record in a fact-sheet that highlighted a handful of decisions with conservative results that judicial conservatives would have been happy to join. She refused to exclude evidence found on the basis of what proved to be an invalid arrest warrant — anticipating by a decade a position that the Supreme Court adopted in January. She backed asylum claims by Chinese women protesting their government’s one-child policy. She argued in dissent for the right of religious organizations to choose their spiritual leaders without interference from the federal government.
      In a larger compilation, SCOTUSBlog found any number of decisions upholding criminal convictions, rejecting habeas corpus challenges by prison inmates or limiting civil justice remedies. Among 30 decisions included, only two stand out as arguably “activist.” In one, Sotomayor wrote the majority decision allowing merchants to bring a class action antitrust suit over credit card company fees. In another, she dissented from a decision rejecting a teenaged girl’s civil rights suit over a strip search by school officials — an issue currently before the Supreme Court in a separate case.
      Sotomayor has no record on such major hot-button issues as abortion rights, capital punishment or gay rights. The White House says Obama did not discuss abortion with her in their hour-long interview. She has touched the issue only glancingly as a judge. She upheld the Bush administration’s ban on federal funding of groups that provide abortion counseling overseas. She also allowed a suit by anti-abortion protesters charging local police with excessive force in breaking up a demonstration. Those rulings may not satisfy anti-abortion groups, but they hardly give comfort to organizations that see fidelity to Roe v. Wade as the essential litmus test for any Supreme Court nominee.
      Indeed, it is fair to say that Obama’s selection represents the third consecutive time that a Democratic president has avoided strict ideological litmus tests in picking a Supreme Court justice. Of the two judges Obama interviewed, Sotomayor is demonstrably less liberal than runner-up Diane Wood. In the 1990s, President Bill Clinton twice picked judges — Ruth Bader Ginsburg and Stephen G. Breyer — with reputations as moderate liberals. As justices, each has lived up to their reputations.
      By contrast, President George W. Bush twice picked judges with documented records as committed conservatives. John G. Roberts Jr. and Samuel A. Alito Jr. had earned their conservative stripes in the Reagan administration and had judicial records — Alito’s longer than Roberts’ — that confirmed their generally conservative leanings. In between, Bush picked an ideological wild card, Harriet Miers, and conservative groups whacked him for it.
      Obama has gained nothing from the legal ideologues for his less than ideological pick. But he has confounded them by nominating Sotomayor to be the first Latina to serve on the court. Whether or not identity politics is good for the court, it is treacherous ground for opponents. Southern Democratic senators learned that lesson in 1991 when they voted with their African American constituents to give Clarence Thomas the margin of his confirmation. Republican senators with Latinos in their states — to some degree, all of them — may buy political trouble if they give Sotomayor a less than welcoming reception as the confirmation hearings proceed.

Tuesday, May 26, 2009

Nomination Watch: Obama Picks Sotomayor

      President Obama’s selection of federal appeals court judge Sonia Sotomayor is a move toward ethnic and gender diversity on the Supreme Court, but sets the stage for a contentious confirmation fight with conservative Republicans, who moved quickly to label her as a liberal judicial activist.
      Sotomayor, 54, brings a compelling a life story of rising from a childhood in a housing project in the Bronx to academic success at elite schools: Princeton and Yale Law School. But in her decade-plus on the federal appeals court in New York, she has also gained a reputation for liberal views and a sometimes prickly temperament.
      The Democratic majority in the Senate seems sufficient to assure confirmation, but Republicans are expected to use Judiciary Committee confirmation hearings to question Sotomayor closely on her views and to help strengthen their standing with social conservatives by focusing on such issues as abortion and gay rights. Barring any unexpected obstacles, however, Sotomayor seems likely to win confirmation in ample time to take her place on the bench when the court returns from its summer recess on the traditional first Monday in October.
      In the White House ceremony announcing the nomination on May 26, Obama stressed what he called Sotomayor’s “compelling life story” as the daughter of Puerto Rican parents and her “depth of experience” as a “big-city prosecutor” in New York City and a “private corporate litigator” before serving on the federal bench first as a trial judge and then an appellate judge. He noted that if confirmed Sotomayor will replace Justice David H. Souter as the only member of the Supreme Court with experience as a trial judge.
      Obama mentioned only one specific decision of Sotomayor’s: her ruling as a trial judge that ended the 1994 Major League Baseball strike. He noted that as a daughter of the Bronx, Sotomayor is a lifelong Yankees fan and said he hoped that would not hurt her standing with New England senators.
      A White House fact sheet cited some other rulings, including a 1999 decision, United States v. Santa, allowing the use of evidence seized from a child pornography defendant on the basis of what proved to be an invalid arrest warrant. The fact sheet noted that the Supreme Court adopted that position in a recent decision, Herring v. United States. The fact-sheet also pointed to other rulings likely to please judicial conservatives. One allowed asylum claims by Chinese women who said they were forced to practice birth control (Lin v. Gonzales)>. In another case, Sotomayor argued in dissent that the federal government should not be able to dictate to religious organizations the selection of their spiritual leaders (Hankins v. Light).
      In accepting the nomination, Sotomayor similarly stressed her experience, saying that her varied positions had helped her “appreciate the variety of perspectives” and the “concerns of all litigants” in cases before her. She said she was “deeply moved” by the selection and described herself as “an ordinary person who has been blessed with extraordinary opportunities.”

Friday, May 22, 2009

Nomination Watch: Obama Mulls as Conservatives Lay Plans

      President Obama began interviewing potential Supreme Court nominees even as conservatives and Republicans were sending strong signals to expect a contentious confirmation fight.
      The conservative Judicial Confirmation Network held a nationwide conference call of supporters on May 18 to release three new Internet ads directed against the three presumed frontrunners for the seat of retiring Justice David H. Souter. Introducing the ads, Wendy Long, the group’s general counsel, described Solicitor General Elena Kagan, Seventh Circuit Judge Diane Wood, and Second Circuit Judge Sonia Sotomayor as “left-wing ideologues.” The ads attack Kagan for “kick[ing] the military off campus, incredibly, during a time of war,” Wood for ruling that “peaceful abortion demonstrators should be punished under the same law that applies to mob bosses,” and Sotomayor for not giving “a fair shake to fire fighters deprived of promotion on account of their race.”
      A day earlier, the New York Times and Washington Post both reported on conservative groups’ strategy memos acknowledging plans to use opposition to Obama’s nominee to rally their base and help unify the beleaguered Republican Party. As the Times reported, most conservative organizations are resigned to the likelihood of Senate confirmation of Obama’s eventual nominee by a sizable majority, but see the fight as an opportunity to develop a strong conservative message. “It’s a massive teaching moment for America,” veteran conservative fundraiser Richard Viguerie told The Times. In the Post, conservative organizers were described as planning to use the familiar issue of abortion and the more recent issue of gay marriage as litmus tests to judge Obama’s nominee.
      Three days later, veteran Republican operative Ed Gillespie, who helped guide two Supreme Court confirmations for President George W. Bush, called in an op-ed in the Post for GOP senators to match Democrats’ tactics in opposing Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. Instead of simply judging legal qualifications, Gillespie said Republicans should feel free to vote against a nominee who embraces “empathetic activism on the bench.”
      The White House, meanwhile, is preparing for the confirmation battle by moving Stephanie Cutter, who guided the Democrats’ strategy on the Roberts and Alito nominations, from a Treasury Department post into 1600 Pennsylvania Avenue. “Moving Cutter shows how seriously we are taking this pick and its rollout,” an unnamed aide told Politico.
      Obama himself began the interview process with a White House meeting with Wood on Tuesday (May 19). Wood was in Washington for a conference on judicial independence sponsored by retired Supreme Court Justice Sandra Day O’Connor. In reporting the interview, the Times noted that Obama would have time for additional interviews while spending Memorial Day weekend at Camp David. (The Times later confirmed that a second finalist has also been interviewed.)
      The Times also continued profiling other frontrunners for the vacancy, with largely positive portraits of Kagan and Carlos Moreno, the California Supreme Court justice who has figured in some speculation as a dark-horse contender. Meanwhile, Jeffrey Rosen, the New Republic legal affairs editor who drew criticism for an unfavorable piece on Sotomayor, heaped warm praise on Wood for what he called her “moderate liberalism and judicial temperament.”
      On the left, People for the American Way countered the conservatives with an extended critique of what the group called the conservatives’ “dishonest, discredited attacks.”
      Obama is widely expected to announce his selection before the end of the month.

Friday, May 15, 2009

Nomination Watch: Suspense Builds as Obama Mulls List

      Could the White House be planning a surprise nominee for the Supreme Court? That is one question in the air as President Obama prepares to spend the weekend (May 16-17) considering a list of six or possibly more potential candidates to succeed retiring Justice David H. Souter.
      Two news organizations reported largely overlapping lists of six purported “finalists” for the post, both including five women, all previously listed in speculation. But the White House also sought to confound speculators by insisting that some of those under consideration have not been publicly identified.
      “The president does take some heart in knowing that in all of the lists that have been seen and produced, there hasn’t yet been one produced with the totality of names which are being considered,” White House press secretary Robert Gibbs said in the daily press briefing on May 12.
      The lists reported by CNN and National Public Radio the next day both included the three presumed frontrunners for the seat: federal appeals court judges Sonia Sotomayor (2d Circuit, New York) and Diane Wood (7th Circuit, Chicago) and Solicitor General (and former Harvard Law School Dean) Elena Kagan. Also on both lists, two political figures: Jennifer Granholm, governor of Michigan, and Janet Napolitano, secretary of Homeland Security and a former Arizona governor and state attorney general.
      CNN reported that the list of six also includes Carlos Moreno, a justice on the California Supreme Court, who like Sotomayor is of Hispanic descent. NPR identified Merrick Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, as the sixth of the finalists. All of these contenders are white, but at least two African Americans have been previously listed as possibilities: Leah Ward Sears, chief justice of the Georgia Supreme Court, and Deval Patrick, governor of Massachusetts.
      Surprise has often been an element of presidential decisions on Supreme Court nominees. President Ronald Reagan stunned Court watchers in June 1986 by simultaneously announcing — with no advance warning — the retirement of Chief Justice Warren E. Burger, his selection of then-Associate Justice William H. Rehnquist to succeed Burger, and his plan to nominate then-Judge Antonin Scalia to take Rehnquist’s seat. Three years later, Souter himself acknowledged surprise when President George H.W. Bush chose him in July 1989, only three days after Justice William J. Brennan Jr.’s retirement.
      More recently, President George W. Bush’s aides may have helped create suspense by spreading disinformation about a successor to retiring Justice Sandra Day O’Connor in July 2005. Throughout the afternoon of July 19, seemingly authoritative sources were reporting that the post was going to federal appeals court judge Edith Clement of New Orleans. At 9 o’clock, however, Bush presented John G. Roberts Jr. as his choice at a White House ceremony. Six weeks later, Bush wasted no time in nominating Roberts instead to be chief justice following Rehnquist’s death from cancer.
      Obama met with Senate leaders to discuss the current vacancy on May 13, but the president mentioned no names, according to one of those who attended, Senate GOP Leader Mitch McConnell of Kentucky. Others in the 40-minute session included Majority Leader Harry Reid, D-Nev.; Judiciary Committee Chairman Patrick Leahy, D-Vt., and ranking member Jeff Sessions, R-Ala.
      McConnell and Sessions both told reporters that they urged the Democrats to allow a 60-day period after Obama’s announcement before launching hearings. Leahy’s response was noncommittal: “We'll work out a decent schedule. Let's get the nominee first.”
      Without naming Sotomayor, many Hispanic groups and leaders were urging Obama to take the chance to name the first Hispanic to the high court. (Justice Benjamin Cardozo’s Portuguese ancestry had not been taken into account until recently.) But Sotomayor continued to be drawing critical attention. In the mix, as reported in The New York Times and elsewhere: videotaped remarks saying that federal courts of appeals (in contrast to district courts) are “where policy is made” and a 2001 speech with the comment that a judge’s sex and ethnicity “may and will make a difference in our judging.”
      The Times also published a more favorable profile of Sotomayor, along with a Web posting of selected opinions. Earlier, the Times had similarly profiled Judge Wood and posted selected opinions on the Web.
      Kagan, the third presumed frontrunner, was profiled in the Los Angeles Times. The headline said she had “admirers left and right” for what the story described as her success in “bridging the ideological divide” as dean of Harvard Law School.
      A nomination is widely expected by the end of the month. On the PBS “NewsHour,” senior adviser David Axelrod said he expected Obama to announce his choice “sooner rather than later.”

Friday, May 8, 2009

Nomination Watch: Let the Vetting Begin!

      One week after news of Justice David Souter’s retirement, the White House is said to have a short list of six, the vetting — official and unofficial — is under way, and conservatives and Republican senators are arming for an admittedly uphill battle.
      NBC’s Pete Williams and NPR’s Nina Totenberg are credited with breaking the story on the evening of April 30. Judiciary Committee Chairman Patrick Leahy, D-Vt., later confirmed to NPR he heard it from Souter in March; the White House is said to have gotten word earlier in the week, prompting speculation the leak came from 1600 Pennsylvania.
      Some observers suggested the leak was bad for the White House: more pressure from outside. More plausible: the White House is happy to have the news out to start floating names, gauge reaction, and be publicly seen to be consulting widely.
      Obama made the announcement official May 1 by interrupting the regular White House press briefing right after talking with Souter on the phone. Obama said “empathy” is “an essential ingredient” for a nominee. Other criteria: “dedicated to the rule of law,” “honors our constitutional traditions,” respects the integrity of the judicial process and the appropriate limits of the judicial role.” Conspicuously missing: judicial restraint, strict construction.
      Republicans wasted no time in attacking the president’s criteria. On “Meet the Press,” ex-Judiciary Committee Chairman Orrin Hatch, R-Utah, said empathy was a “code word” for liberal judicial activist. By midweek, Alabama’s staunchly conservative Jeff Sessions had been picked to be ranking member for the hearing. Sessions — recalling the Judiciary Committee’s rejection of his nomination for the federal bench in 1986 — told Politico that the committee needs to base any criticisms of Obama’s nominee “on a fair and honest statement of the facts.” .
      Conservatives were also quick to start roughing up some of the presumed front-runners, including Judges Sonia Sotomayor (2d Circuit) and Diane Wood (7th Circuit) and Solicitor General (and ex-Harvard Law School dean) Elena Kagan. Judicial Confirmation Network’s Wendy Long labeled all three as “liberal judicial activists.” The hit on Sotomayor: ruling against the white firefighters in the New Haven case before the Supreme Court; being a “bully” on the bench. The hit on Wood: allowing use of RICO against anti-abortion protesters (twice overruled by Supreme Court). The hit on Kagan: seeking to bar military recruiters from campus because of “don’t ask, don’t tell” (rejected by Supreme Court). At Bench Memo, Ed Whelan seconded the critique on Wood, in two parts (May 4 & 5).
      Sotomayor got a second and more significant roughing-up from the New Republic’s Jeffrey Rosen, who — in the first of a promised series on potential nominees — sized her up as overbearing and under-smart. Rosen’s piece prompted more favorable comments from Sotomayor admirers and a critical dissection from Talking Points Memo. Rosen responded by sticking to most of his critique, denying any use of deputy SG and Rosen brother-in-law Neal Katyal as a source, but concluding with the description of Sotomayor as “an able candidate.”
      For their part, liberal groups such as People for the American Way and the Alliance for Justice were naming no names but urging Obama to name a justice who “will defend the rights of individual Americans against powerful government and business interests” (People For) with “a commitment to equal justice for all, not just a few” (Alliance for Justice).
      One week into the process, ABC’s Jan Crawford Greenburg reported on her “Legalities” blog that the White House had sent questionnaires to a short list of six candidates, including Sotomayor, Wood, and Kagan. The other three names: unleaked for now. Greenburg says chief of staff Rahm Emmanuel likes the politics of picking Hispanic Sotomayor; unnamed “legal officials” are said to think Wood or Kagan would bring more “intellectual prowess” to the court’s liberal wing.
      With virtually all speculation focused on female candidates, Slate’s Dahlia Lithwick and Hanna Rosin openly labeled Stanford law professors Kathleen Sullivan and Pamela Karlan as openly out lesbians and speculated about the sexual orientation of other unmarried women being mentioned: Kagan and Homeland Security Secretary Janet Napolitano. Sessions told Politico’s Jonathan Martin he would not be averse to a gay nominee.
      As for timing, Souter said he will retire when the court “rises for the summer recess” (at the end of June) instead of waiting for a successor to be confirmed. Obama wants the nominee in place by the traditional First Monday in October. Even if vetting takes a few weeks, as seems likely, the Judiciary Committee has ample time to meet Obama’s schedule. Watch here for more.

Friday, May 1, 2009

David Souter: A Principled Justice

      David Souter will not be remembered as a great or near great justice. He will leave the Supreme Court at the end of his nineteenth term with relatively few landmark majority opinions bearing his name. His dissenting opinions tend to be long in legal prose and footnotes and short in soaring rhetoric or memorable quotes. And many conservative Republicans will of course remember him as a traitor to their cause and to the president who appointed him, George H.W. Bush.
      Souter deserves better. In an era of increasing ideological polarization on the court, he stands out as a judge’s judge: judicious in temperament, rigorous in legal reasoning, faithful to constitutional tradition, and stalwart in defense of the court as a legal instead of a political institution.
      Nothing exemplifies Souter’s belief in the court’s role better than the decision that many conservatives count as an historic betrayal: his critical vote along with Justices Sandra Day O’Connor and Anthony M. Kennedy in 1992 to reaffirm the landmark abortion rights ruling, Roe v. Wade. Souter’s contribution to the jointly authored plurality opinion stressed the danger that a reversal in the face of intense political opposition would cause what he called “profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law.”
      From various accounts — including that of CNN senior editor Jeffrey Toobin in his book The Nine — Souter believed that the court inflicted that kind of damage on itself with its 2000 decision in Bush v. Gore. According to Toobin, Souter viewed the decision to cut off the Florida vote recount and hand the presidency to George W. Bush as a blatantly partisan act by the five conservative, Republican-appointed justices in the majority.
Toobin wrote that Souter considered resigning — a report disputed by Souter’s original sponsor, New Hampshire’s former Republican senator Warren Rudman. Souter himself has never publicly addressed the report. Indeed, Souter is famously media-averse. He dislikes having his picture taken and vowed that video cameras would be allowed in the Supreme Court’s courtroom only over his dead body.
      Indeed, Souter has been very much the anti-modern justice: using a fountain pen instead of word processor to write his opinions, carrying his apple and yogurt lunch to the office in a plastic bag, and preferring his remote New Hampshire cabin to the social and political life of the nation’s capital.
      Fittingly, Souter’s most distinctive jurisprudential contribution is in fact rooted in history: his strict view of the separation of church and state, whether speaking for a majority or in dissent. In his first important vote on the issue, Souter cast a critical vote (along with Kennedy) to bar even “nondenominational” prayer at high school graduation ceremonies. In his concurrence, Souter carefully reviewed the history of the Establishment Clause to conclude that the Framers intended to bar government support not merely for one particular denomination over another but for religion in general. He then added that reviewing supposedly nondenominational prayers would thrust the courts into “comparative theology” — a task beyond the competence of the federal judiciary.
      A decade later, Souter spoke for the majority in barring religiously-motivated displays of the Ten Commandments in government buildings. In many other cases, however, Souter found himself at odds with the Rehnquist Court’s willingness to permit government aid to religion. And two years ago, he led four dissenters from the Roberts Court’s decision to block taxpayer suits using the Establishment Clause to challenge federal expenditures as improper aid to religious programs or institutions.
      Souter also relied on history to dissent from a second major departure by the Rehnquist Court: the use of state sovereignty principles to limit private suits against state governments for violating federal laws. Dissenting in the 1996 decision that launched the new jurisprudence, Souter argued that the Rehnquist-led majority was misreading the Framers and distorting the court’s own precedents.
      The 1992 abortion decision prompted speculation that O’Connor, Kennedy, and Souter would form a lasting triumvirate in the court’s ideological center. That did not come to pass. Souter moved to the left, while O’Connor and Kennedy reverted to their accustomed positions at the centermost point of a predominantly conservative bench.
      In the succeeding 17 terms, Souter has been a reliable member of a liberal bloc more often than not in dissent in the court’s most important decisions. On the bench, he has used carefully structured questioning to challenge the conservative bloc’s apparent inclinations — for example, in colloquies this week defending the continuing validity of the Voting Rights Act’s key section against the open skepticism from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia.
      Souter has not voted in lockstep, however. He departed from the liberal bloc in writing the 5-4 decision permitting police to make a custodial arrest for a minor traffic arrest and the 5-3 decision striking down the punitive damage award in the Exxon Valdez oil spill.
      The Supreme Court’s legitimacy, Souter wrote in the abortion decision, “depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.” Likewise for a justice’s legitimacy. On that standard, Souter has acquitted himself well: a justice as principled as he was unprepossessing, on the bench or off.