ConfirmThem

Posted at 8:40pm on May 27, 2009 Interesting Article by Charlie Savage

By AndrewHyman

Apparently, there were no litmus tests, for which President Obama deserves praise.

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Posted at 11:07am on May 26, 2009 On the Sotomayor appointment

By Feddie

My take on the appointment? She's the best of the worst. Judge Sotomayor will almost certainly be a reliably liberal vote on the hot-button social issues, but she's not going to play a leading role in shaping the jurisprudence of the Court (like Judge Diane Wood almost certainly would have done).

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Posted at 8:02am on May 6, 2009 Kathleen Sullivan: SCOTUS or 9th Circuit?

By Curt Levey

The subplot to yesterday’s announcement that Michael McConnell is leaving the Tenth Circuit is that he will be replacing Law Professor Kathleen Sullivan as Director of Stanford’s Constitutional Law Center. It’s hard to imagine that the ultra-liberal Sullivan is happy about being replaced by the conservative McConnell. That leads me to speculate – until I hear otherwise – that either Sullivan was forced out or, more likely, that she anticipates leaving Stanford in the near future, probably for an appointment by President Obama. Sullivan could almost surely have secured a high-ranking position in the Obama Justice Department, but didn’t, so I’m guessing her interest lies with the federal bench.

The nightmare scenario is that Sullivan expects to be named to fill Justice Souter’s seat on the Supreme Court. She is often listed among the leading contenders. My guess is that President Obama is too much of a pragmatist to name Sullivan, who has been a leading advocate of gay marriage in California, to the High Court. In that case, she may well be anticipating appointment to the Ninth Circuit, where she’ll fit right in.

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Posted at 2:07am on May 2, 2009 Obama Sticks to his Activism Pledge

By Curt Levey

This was my advice to President Obama yesterday:

[N]ow would be a good time for you to clarify if you feel that you may have gone too far by endorsing judicial activism. For example, you could make it clear that you agree with Attorney General Eric Holder’s recent statement that ‘judges should make their decisions based only on the facts presented and the applicable law.’

I guess he wasn’t listening:

‘I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook,’ Mr. Obama said during an unscheduled appearance [yesterday] in the White House briefing room. ‘It is also about how our laws affect the daily realities of people’s lives.’

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Posted at 11:13pm on Apr 30, 2009 Justice Souter to Step Down?

By aurel

Reliable rumor has it that Justice David Souter, nominated by President George H.W. Bush but a reliable liberal vote on the Court, is intending to step down at the end of this term.

Story here.

Likely candidates for replacing Souter: Sotamayor, Kagen, Wood (in that order of likelihood).

Discuss below...

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Posted at 9:02pm on Apr. 20, 2009 Rethinking Impeachment

By Curt Levey

Adding to a growing chorus of left-wing whacko voices, Rep. Jerry Nadler (D – NY) called today for the impeachment of Ninth Circuit Judge Jay Bybee, who headed DOJ’s Office of Legal Counsel when it produced the “torture memos” released last week. Frighteningly, Rep. Nadler chairs the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. Said Nadler of OLC’s memos,

It was not an honest legal memo. It was an instruction manual on how to break the law.

What struck me is that if you change two words in Nadler’s description – “memo” to “opinion” and “break” to “subvert” – you have a perfect description of what the Supreme Court’s liberal justices do regularly when they write opinions in ideologically charged cases.

Assuming arguendo that the Nadler is right, any damage done to American law by Bybee’s memos has since been undone. Sadly, the same cannot be said of the damage done to the Constitution by liberal Supreme Court justices.

I’ve never supported impeaching judges for bad or even disingenuous legal reasoning – the charge against Jay Bybee. But if Nadler and his Democratic colleagues promise to apply such a standard even-handedly, I might be persuaded to change my mind.

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Posted at 6:06am on Mar. 10, 2009 The Secret to Justice Souter’s Jurisprudence

By Curt Levey

"When the term of court starts, I undergo a sort of annual intellectual lobotomy and it lasts until the following summer."
— Justice David Souter, Humanities in a Civil Society Symposium, George Washington University, March 9, 2009 (quote begins at 1:26:30 here)

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Posted at 8:02pm on Aug. 29, 2008 Film on SCOTUS Confirmation Battles

By Curt Levey

If you’ll be in Minneapolis next Tuesday, join me for a screening of the soon-to-be-released feature documentary about the Supreme Court confirmations battles of 2005-06. The screening of “Advise & Dissent,” by director David Van Taylor (“With God on Our Side” and “A Perfect Candidate”), will be followed by a panel discussion of legal experts, including yours truly. Details here.

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Posted at 10:18am on Jul. 18, 2008 Interesting Poll Result

By AndrewHyman

From a Quinnipiac poll:

The Supreme Court has recently ruled that a mandatory death penalty for child rape is unconstitutional. Do you favor or oppose the death penalty for persons convicted of child rape?

55% favor, 38% oppose. I'm not sure which way I'd answer this question, but I certainly don't think it's a "cruel" punishment for the kind of thing that happened in Kennedy v. Louisiana. This is a question to be decided by the people and their elected representatives.

Frankly, I am tired of the U.S. Supreme Court foisting its policy preferences on the people, not to mention doing so with the most condescending lectures imaginable about how some people's views are more "evolved" than those of other people. Even if this punishment were "cruel", it certainly would not be "unusual" in a historical sense (which is what the framers of the Bill of Rights meant by "unusual"). I guess the deadline is approaching for a motion for reconsideration in the case.

How can SCOTUS expect individual citizens to obey the law when they offer patently misleading opinions to justify their own disregard for valid legislation?

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Posted at 7:53am on Jul. 7, 2008 Are You Friggin Kidding Me?

By Curt Levey

“[The appointment of Justice Kennedy to the Supreme Court] turned out to be successful beyond Reagan's wildest dreams. … Kennedy was exactly what Reagan thought – ‘a true conservative.’” – David Broder, Washington Post (7/6/08)

Broder’s thesis is that putting Anthony Kennedy on the Supreme Court was successful beyond Reagan's wildest dreams because Kennedy “has turned out to be its single most influential member.” Is Mr. Broder unaware that it’s Kennedy’s Court precisely because he is not a true conservative? Were he one, he would be no more influential than the four more conservative Justices.

As Broder notes, third-choice “Kennedy is an accident of history” – an accident that would not have happened, I might add, if the Clinton / Obama standard for judging past marijuana use had been in effect in 1987.

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Posted at 10:35am on Jun. 30, 2008 So, Will Anyone Retire?

By Quin

Not to falsely raise anybody's hopes, but.... will any of the Justices retire now that the term is over? I still say there's a chance. Stevens or Souter could let the 4th of July holiday pass, and then: Whammo. Drop a media bomb. If so, you can probably say hello to Justice Consuelo Callahan.

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Posted at 3:38pm on Jun. 10, 2008 Be Ready, Mr. President

By Quin

Forgive the rank mischief-making, but I posted this at the American Spectator blog yesterday, and it really belongs here, too:

Memo to President Bush: As the Supreme Court winds down its term in the next three weeks, your administration better be ready. And NOT just, by the way, for conservative revolt if the Court takes the unlikely step of ruling against gun ownership rights (or punting the issue, as your solicitor general's brief essentially suggested). No, what you should be ready for is the unexpected, unlikely, but still very possible chance that one of the justices could announce his/her retirement at term's end. Nobody expects it, but that doesn't mean our administration should sleepwalk, unprepared. Instead, you should already have a nominee chosen and ready to go, with a battle plan at the ready to take the initiative and define the nominee for the public before the liberal smear campaign can even get off the ground.

Now, why would a justice retire in an election year? Well, specifically BECAUSE it is an election year. I can see Justice Stephens, in his late 1980s, deciding that he wants to go out the way he came in, under a Republican president...but with a twist. He could consider it a bit of party loyalty to give a Republican a chance to fill his spot, but by doing it in an election year he could force the Republican president to take political fallout particularly into acount and, in short, to make the court a fully public issue rather than one just for Senate gamesmanship. If there ever were a time when Stephens could go out without feat of being replaced by a Scalia-like conservative, it is right now in this election year with a Senate controlled (slightly) by Democrats.(MORE)

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Posted at 11:58pm on Jan. 16, 2008 New York v. Torres

By AndrewHyman

I previously mentioned this strange case, in which plaintiffs challenged New York's method of selecting judges as a violation of the First Amendment. Yesterday, SCOTUS unanimously rejected the challenge, and rightly so. But four of the justices (Breyer, Kennedy, Souter, and Stevens) took this opportunity to express their concern about the notion of judicial elections, on policy grounds, seeing as how judicial elections can turn judges into run-of-the-mill politicians. Ed Whelan finds that concern ironic, coming from four justices who have behaved in the past as legislators.

Justices Kennedy and Breyer additionally implied that they could strike down the New York election procedures if the case had been pleaded differently: "The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence....[but] the present suit does not permit us to invoke the Constitution in order to intervene." In other words, "come back with a Due Process argument instead of a First Amendment argument, and then we can legislate from the bench." So restrained of them.

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Posted at 11:35am on Jan. 14, 2008 SCOTUS Rejects ‘Right to Live’ Case

By Curt Levey

I was disappointed to hear that today the Supreme Court denied the plaintiff’s cert petition in Abigail Alliance v. von Eschenbach, a case in which the DC Circuit ruled en banc that there is no fundamental right to try to save one’s life through access to drugs not yet approved by the FDA. If there are any unenumerated fundamental rights – and the Supremes say there are – I would think the right to save your own life is one of them. It would seem to rank up there with the right to breathe air, and far above the right to kill your fetus. Moreover, as I said in a Federalist Society debate,

“It would be particularly startling if the state, which is constitutionally prohibited from regulating abortion procedures when it risks the health of the mother, were free to regulate pharmaceuticals when the regulation ensures the death of the patient.”

For details on the case and the views of others, see the online debate.

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Posted at 8:10pm on Nov. 20, 2007 Kennedy and Guns

By Curt Levey

For almost two years now, the rule has been: as Kennedy goes, so goes the Supreme Court. And there’s no reason to think that is going to change when the Court decides District of Columbia v. Heller, the Second Amendment case in which cert was granted today. With that in mind, I was interested to see Orin Kerr’s look into the mind of Justice Kennedy re Heller:

Kennedy will conclude that the Second Amendment does in fact create an individual right [but] will endorse a relatively deferential standard of review that will end up allowing a great deal of gun regulation.

Kerr’s prediction is worth listening to. He clerked for Kennedy on the Supreme Court and was—in my opinion—the smartest person in my law school class of over 500 people.

For what it’s worth, I agree with Kerr here. The approach he describes is the only way Kennedy can split the baby, and you know how much Kennedy loves to play King Solomon. (note to self: don’t refer to “splitting the baby” when discussing Justice Kennedy’s abortion jurisprudence.)

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Posted at 6:32pm on Sep. 4, 2007 Book: Souter Considered Retirement After Bush v. Gore

By aurel

According to Jeffrey Toobin’s new book on the Supreme Court, Justice David Souter nearly resigned in the wake of Bush v. Gore, so distraught was he over the decision that effectively ended the Florida recount and installed George W. Bush as president.

In “The Nine,” which goes on sale Sept. 18, Toobin writes that while the other justices tried to put the case behind them, “David Souter alone was shattered,” at times weeping when he thought of the case. “For many months, it was not at all clear whether he would remain as a justice,” Toobin continues. “That the Court met in a city he loathed made the decision even harder. At the urging of a handful of close friends, he decided to stay on, but his attitude toward the Court was never the same.”

Discuss.

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Posted at 6:28am on Sep. 4, 2007 Roberts Suggested Miers Nomination?

By Curt Levey

Welcome back from Labor Day weekend and August recess. Robert Draper helps to get us back in the spirit of political intrigue with his new book on the Bush White House, “Dead Certain: The Presidency of George Bush,” which hits bookstores today. Among the book’s many tidbits—reported in yesterday’s Washington Post—are a few about the nomination of Harriet Miers to the Supreme Court.

Draper’s most intriguing assertion about Miers is that it was John Roberts who suggested to Bush the possibility of making her the next SCOTUS nominee. Draper does not make the source of this previously unreported assertion clear, and Roberts, through a spokesman, denies it.

Draper reports that Karl Rove expressed concerns about nominating Miers, but muted his objections after being “shouted down” by other advisers who did not anticipate the outcry from conservatives. The book also recounts how the President and First Lady prevailed on Miers to accept the nomination, despite her reluctance to do so.

The Post reports that White House spokesman Tony Fratto had no comment on Draper’s book, including the Miers claims.

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Posted at 7:55pm on Jul. 15, 2007 Roberts Court Threatens Fabric of America

By Curt Levey

Democratic White House hopefuls took advantage of today’s presidential forum to beat up on the Roberts Court. John Edwards said the Court is “eating away at the fabric of America, of who we are and what we are.” Hillary reminded the crowd that she had warned America of the grave consequences that would follow if Samuel Alito were confirmed. She wisely realized that his record of “sid[ing] with big business against nearly anyone on any issue” meant that, once on the Court, he would help to “undo years of precedent.” But what else would you expect from a nominee of “the most radical presidency we've ever had in our country's history.”

I’ll be looking for the reaction from former Justice Sandra Day O'Connor, who has repeatedly warned since her retirement that “using judges as punching bags presents a grave threat to the independent judiciary.” Surely she doesn’t have just conservative criticism of the courts in mind.

Although the AP article on the presidential forum doesn’t mention the crowd’s reaction to today’s judge bashing, I’m sure it was very enthusiastic. The audience was, after all, a bunch of trial lawyers.

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Posted at 3:47pm on Jul. 12, 2007 What May Come to Pass

By aurel

If the Democrats win the White House in 2008 and hold on to, or expand, their senatorial majority, the Democratic President will almost certainly get to replace at least two and quite possibly three Justices during her first term: Stevens, Ginsburg and Souter. Justice Kennedy and the conservative quartet are unlikely to retire voluntarily under a Democratic President.

Tom Goldstein of SCOTUS Blog has made a study of the possible Democratic short-list. His ultimate prediction is "Kim Wardlaw (2009, for Souter), Deval Patrick (2010, for Stevens), and Elena Kagan (2011, for Ginsburg)." A more detailed list and explanation is available on SCOTUS Blog.

It's a timely reminder for conservatives that ultimate victory in the form of a conservative court-majority may be close but can as easily be lost for another generation.

If the GOP manages to retain the White House in 2008, the Republican president is probably going to be in a position to finally achieve the conservative court majority that should have been obtained as long back as 1991.

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Posted at 7:21am on Jul. 1, 2007 Maybe the Constitution has something to do with it

By Curt Levey

In today’s Washington Post, Edward Lazarus writes that the lesson of the just-ended Supreme Court term “is that a rare triumphant [50-year] chapter in judicial history has come to a definitive close.” Triumphant if you’re a liberal, that is.

Lazarus concludes that progressives “will need a significantly different strategy and focus,” because “the progressive approach to looking to the judiciary for social and political salvation has always run against the grain of history.” And against the grain of the Constitution, he forgot to say. Seemingly unaware of the Founding Fathers’ intentions, Lazarus is left to speculate that the Court’s “conservative normalcy” may be due to “the demographics of the justices or the often retrospective nature of judicial review.”

Lazarus believes that “progressives will now have to win their battles in the political arena.” Let’s hope he got that one right.

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Posted at 10:58am on Jun. 26, 2007 Let's Start a Rumor

By Quin

Just for fun, let's start a rumor. Let's all go bonkers trying to predict who Bush will nominate when Justice Souter announces from the bench on Thursday that he is retiring to his cabin in New Hampshire. Starting a rumor like that will get our mind off of everything else bad that is going on in politics and in national and international news. Heh, heh.
PS If Bush nominates a solid conservative, how long will it be before Sens. Graham, Lott, McCain, and others start running for cover and expressing their utmost sorrow that in the current climate, Bush really ought to nominate more of a consensus candidate? Oh, yeah, we were supposed to be having fun with this rumor, a bit of escapism from reality. Sorry to have reality intrude in the form of some virtually worthless senators....

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Posted at 8:17pm on Jun. 25, 2007 Not a Conservative Victory

By Curt Levey

Some see today’s campaign finance decision as evidence that the Supreme Court is “entrenched on the ground of the legal right,” to quote Andrew Cohen’s comments today. But the decision is more accurately viewed as a victory for free speech. What else can explain the fact that the Court was on precisely the same page as the liberal L.A. Times, which called the McCain-Feingold provision at issue “glaringly offensive to the 1st Amendment” in an editorial earlier this year. The Times added that

The particular facts of the Wisconsin Right to Life ads are a compelling indictment of the law's overreach and should prod the high court to reconsider whether the law could be constitutional under any set of facts.

But for those who insist on a left-right analysis of the case, note that both Roberts and Alito were to the left of Justice Kennedy here. So much for the view that Alito and Roberts are part of a monolithic right-wing bloc on the Court.

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Posted at 10:52am on Jun. 14, 2007 Dreaming

By Quin

I had some fun with this column yesterday. Nice to dream, isn't it?

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Posted at 12:36am on May 13, 2007 "Justices can't distinguish Constitution from Catholic catechism"

By Curt Levey

Geoffrey Stone move over. Your anti-Catholic rant about the Supreme Court’s recent partial-birth abortion decision can’t compare to that of Frances Kissling, the recently retired president of Catholics for a Free Choice. The lengthy subtitle of her May 11 op-ed on Salon.com says it all: “By upholding the ban on ‘partial-birth’ abortion, the Supreme Court has injected rigid Catholic teaching into law. That's a crime against the Constitution and women.”

The rest of the op-ed is enough to make a less strident bigot blush. For example . . .

[I]t seems unreasonable to maintain the facade of a court free of a religious test. For some time now, such a test has existed—and it is an orthodox Catholic test. We were ill-served by senators who, fearing that talking about what orthodox Catholicism requires of its adherents would subject them to charges of anti-Catholicism, confirmed justices who cannot distinguish the Constitution from the catechism of the Catholic church.

Kennedy's opinion . . . could easily have been written by the late Pope John Paul II or the current Benedict XVI. Women are invisible in this decision as they are invisible in the writings of recent—and not so recent—popes. Now it's impossible for me to remain silent.

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Posted at 8:56am on May 1, 2007 Thomas once again shows his disdain for stare decisis

By Alexham

From Justice Thomas's concurrence yesterday in United Haulers:

The Court does not contest this point, and simply begins its analysis by appealing to stare decisis.

Translation: Stare decisis is fo' suckas!

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Posted at 11:02pm on Apr. 29, 2007 What’s the difference between Rosie O'Donnell and Geoffrey Stone?

By Curt Levey

Not much, as John Yoo explains in Saturday’s Wall Street Journal (subscription only; text below the fold). Both the blow-hard TV host and the former University of Chicago Law School dean share anti-Catholic bigotry and an inability to conceive that there might be sound reasons for upholding the federal ban on partial-birth abortion. As Yoo notes, presidential candidate John F. Kennedy got a more open-minded reception nearly 50 years ago.

That O'Donnell and Stone hold similar views on the scope of a constitutional right to abortion shouldn’t be surprising, given Yoo’s observation about “how intellectually lazy the liberal defense of Roe has become.” More surprising was the criticism from pro-choice religious leaders that the five Catholic justices "decided they could better determine what was moral and good than the physicians, women and families facing difficult, personal choices in problem pregnancies." Are these religious leaders equally convinced that other personal choices—concerning prostitution, narcotics, and the like—are outside the reach of the law? Or is there something particularly sacred about the decision to crush your fetus’s skull?

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Posted at 11:45pm on Apr. 20, 2007 Justice Ginsburg Agrees with Herself

By Curt Levey

It should surprise no one that, in Justice Ginsburg’s Carhart dissent, she chooses the Court’s VMI (U.S. v. Virginia) and Social Security (Califano v. Goldfarb) decisions as the best examples of proper “notions about women's place in the family and under the Constitution.” That’s because she wrote the former and argued the latter.

Nor should anyone be surprised that, according to Ginsburg’s dissent, “legal challenges to undue restrictions on abortion procedures [are not about] some generalized notion of privacy” after all. Instead, they’re about “a woman's autonomy to determine her life's course, and thus to enjoy equal citizenship stature.” Once again, Justice Ginsburg agrees with herself:

I've always said . . . that the equal protection strand should join together with the autonomy of decision-making strand so that it wasn't a question of equal protection or personal autonomy; it was a question of both. — Justice Ginsburg, Supreme Court confirmation hearing, July 1993 (explaining the grounds on which a constitutional right to abortion rests)

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Posted at 7:01pm on Apr. 18, 2007 Reid has some splaining to do

By Curt Levey

“A lot of us wish that Alito weren't there and O'Connor were there.”

That’s Senate Majority Leader Harry Reid’s puzzling reaction—at a press conference—to today’s Supreme Court decision upholding the federal partial-birth abortion ban. This remark from a man who voted for the partial-birth abortion ban found constitutional today and against an amendment to the bill declaring that “Roe v. Wade was appropriate and . . . should not be overturned.”

Is Sen. Reid saying that he voted for the federal ban hoping it would be overturned by the Supreme Court? Is he saying that he voted for what he believes to be an unconstitutional law? Or was he just hoping that he could score points with the Left by bashing President Bush’s Supreme Court picks, without pro-life voters in his home state of Nevada noticing the contradiction??

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Posted at 10:52am on Apr. 18, 2007 The PBA Opinion

By Alexham

You can read it here.

I will highlight key excerpts from the majority opinion and Justice Thomas's concurrence below the fold.

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Posted at 10:18am on Apr. 18, 2007 Federal PBA ban upheld by the Supremes

By Alexham

Details to follow.

Update: SCOTUS Blog is on the case.

From the AP (quoting the opinion, which has yet to be published online):

The opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases," Justice Anthony Kennedy wrote in the majority opinion.

And this from Justice Ginsburg:

"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling "refuses to take ... seriously" previous Supreme Court decisions on abortion.

(More below)

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