May 2009 Archives
We've barely begun this nomination process, but it's never too early to start thinking about the next one.
In a briefing Thursday with a small group of columnists, President Obama's senior adviser David Axelrod gave a sneak peak into the potential nominees Obama may tap if he gets a second chance. In discussing the administration's reasons for choosing Sonia Sotomayor, Axelrod praised the other finalists and said the president had made a case for each one.
"It wouldn't at all surprise me if some of the very same people were back in the Oval Office talking to him," if he gets another choice, Axelrod said.
Axelrod did not go into detail as to which specific finalists he was referring to, but in an earlier briefing Tuesday after the announcement, the White House said the other frontrunners who had a personal interview with Obama were Solicitor General Elena Kagan, Homeland Security Secretary Janet Napolitano and Judge Diane Wood.
Sonia Sotomayor will start informal meetings with senators next week, White House press secretary Robert Gibbs said today.
She will meet Tuesday with Majority Leader Harry Reid, D-Nev., Senate Judiciary Chairman Patrick Leahy, D-Vt., and Judiciary ranking member Jeff Sessions, R-Ala., Gibbs said. He added that a meeting with Senate Minority Leader Mitch McConnell, R-Ky., was also being set up. "We are hopeful other visits can be rescheduled for Tuesday and the rest of the week," Gibbs said. Obama has said he hopes Sotomayor is confirmed to replace retiring Justice David Souter before the Supreme Court reconvenes in early October.
From CongressDaily's "Final Word" section:
"Naturally, all of the groups on both sides have been knocking on the door. I mean, I have to admit both sides are very forceful. I can't tell you how obnoxious both sides can become from time to time."
-- Senate Judiciary member Orrin Hatch, R-Utah, speaking this morning on National Public Radio.
Subscribers to CongressDaily can read today's PM issue here.
Of all the interest groups the Obama White House met with during its Supreme Court nomination process, at least one of them was conservative.
Federalist Society Executive Vice President Leonard Leo told NationalJournal.com that a member of the group's senior management team, Dean Reuter, attended a White House briefing May 19. Representatives from the American Constitution Society, American Bar Association, Minority Corporate Counsel Association and Association of Corporate Counsel were also there, we've learned; the White House has not released a full list.
This is one of at least three meetings involving the White House in the weeks before President Obama introduced Sonia Sotomayor as his high court nominee. One of them brought together several heavyweight left-leaning groups, including the Alliance for Justice, People for the American Way and the AFL-CIO; in another, several minority bar associations, including those representing Hispanics, Asian-Americans and Native Americans, discussed the nomination with officials as part of an annual meeting.
Right-leaning groups have been scarce. As for left-leaners, the New York Times reported Thursday that the White House had a specific message for them: They were told "not to lobby for their favorites in the news media or talk down candidates they opposed. The message, as one surprised visitor heard it, was 'get on board or get out of the way.'"
The Federalist Society typically stays out of nomination battles and wouldn't be expected to share this administration's judicial views in any case, but it has a longstanding, influential role in conservative politics that might have been a factor for the White House. On Monday, for instance, the group is hosting a luncheon with Alabama Republican and Senate Judiciary Committee ranking member Jeff Sessions.
Liberal and conservative partisans commenced crowing/bellowing on cue this week after President Obama nominated Sonia Sotomayor to the Supreme Court. Everyone knows it's all over but the spinning, but Lefties can take special solace in an odd trend: Liberal high court justices stick to their ideology on the bench while rightward picks have tended to drift to the left over time. Nobody can agree on why.
The poster children most often praised/cursed are Harry Blackmun, William Brennan, Sandra Day O'Connor, David Souter, John Paul Stevens, and Earl Warren -- all of whom were nominated by Republican presidents and went on to side with the liberal bloc on key Court decisions. President Dwight D. Eisenhower ultimately described his appointment of Warren as "the biggest damn-fool mistake I ever made."
Some experts think the trend might be ending, as recent (particularly Republican) presidents take more care to determine their nominees' ideological leanings. "Justices don't stray far when they're a known quantity," said law professor Eugene Volokh at the University of California (Los Angeles).
While conservative talk show hosts and some GOP politicians sound ready to man the barricades to stop Judge Sonia Sotomayor from joining the Supreme Court, Republican participants in the latest National Journal Insiders Poll wouldn't advise it. Of the 89 Republican Insiders who responded to this week's survey, 64 percent said it would not be politically smart for Republicans to try to block her confirmation, while 24 percent said it would be. Another 12 percent said the answer to that question depends on what additional information comes out about her in the confirmation process.
Not surprisingly, an overwhelming 89 percent of the 92 Democratic Insiders who responded to the poll said it would not be politically smart for Republicans to try to block her.
The Republican Insiders who were against trying to block Sotomayor listed several reasons for not doing so, including:
• "Such a move would alienate Hispanic voters from whom the GOP cannot afford to lose any more support."
• "It could also antagonize many women, another group to which the party needs to build more bridges."
• "She can't be that liberal if she was first appointed to the bench by President George H. W. Bush."
• "Her life story as the daughter of a single mom who goes on get an Ivy League education and a seat on the federal judiciary would be compelling to many Americans."
From National Journal's May 30 cover story:
The New York Yankees, the baseball team that Sonia Sotomayor says she adores, was among the first to use the squeeze play to great and showy effect nearly a century ago, occasionally even getting two runs with one well-executed maneuver. Senators shouldn't be surprised, then, that President Obama and his Supreme Court nominee know how to piece together victories.
As things stood at week's end, the president had the support of his own team to get Sotomayor touching home plate by the fall. Beginning next week during private meetings with senators, the 54-year-old Appeals Court judge will effectively begin the real "hearings" process, when Republican senators question her in one-on-one conversations that will shape their opinions well before the Judiciary Committee gavels open her confirmation hearings. They'll ask about empathy and her decisions during 11 years on the Appeals bench, and they'll look for any chinks serious enough to disqualify the first Hispanic, who is also only the fourth woman nominated to the Court....
Conservative activists outside the Senate lost no time assailing Sotomayor as a closet liberal well beyond the mainstream who would eagerly try to make law once confirmed. But Senate Republicans, most of them far from Washington during the Memorial Day recess, kept their instant assessments in check while studying Sotomayor's record and weighing whether a vote to oppose a Hispanic woman would haunt them politically. Some Republican advocacy groups and activists conceded that defeating Obama's choice would be tough.
"The administration wants to put a squeeze on senators and make it politically hard to oppose her," said Wendy Long, general counsel for the conservative Judicial Confirmation Network. "We want to make sure senators evaluate her without regard to demographic consideration, honestly and fairly on the merits."
"Good luck" was the refrain from Senate Democrats who are gearing up to help the White House secure the nomination of a woman who has been on liberals' short list of Supreme Court candidates for years. While they're at it, Democrats are trying to pit social conservatives against GOP moderates -- factions already arm-wrestling over their party's direction in the wake of two disastrous election cycles.
Subscribers to National Journal can read the rest of the story here.
• "The White House scrambled" Thursday "to assuage worries from liberal groups about Judge Sonia Sotomayor's scant record on abortion rights, delivering strong but vague assurances that the Supreme Court nominee agrees with President Obama's belief in constitutional protections for a woman's right to the procedure," the Washington Post reports.
• "Senate Judiciary Committee staffers are busy vetting" Sotomayor, "but no major decisions about the confirmation process are likely to be made until the panel's top Democrat and Republican return to Washington," CQ reports.
• "Sotomayor's involvement with the" Puerto Rican Legal Defense and Education Fund "has so far received scant attention," the New York Times reports. "But her critics, including some Republican senators who will vote on her nomination, have questioned whether she has let her ethnicity, life experiences and public advocacy creep into her decisions as a judge."
• "'ObamaNet' -- the relentless, ubiquitous, new media network assembled around Barack Obama -- was never more apparent than after the announcement of the president's first Supreme Court nominee," USA Today reports.
• Sotomayor "did not vote in the last two statewide elections in New York, according to voting records," the New York Times reports.
• Sotomayor "has a blunt and even testy side, and it was on display in December during an argument before the federal appeals court in New York," the Times also reports.
• "A major climate change lawsuit brought by eight states against five utilities has been pending decision for nearly three years before an appellate panel on which Sotomayor is the presiding judge," the National Law Journal reports.
Commentary
• "Washington loves a good show, and few performances are better than a Supreme Court battle," Dana Milbank says.
• "Basically before it ever started, the fight over" Sotomayor's confirmation "is done." SCOTUSblog founder and lawyer Tom Goldstein predicts that "she is going to be confirmed by a relatively wide margin and without a substantial, mainstream assault on her credentials or suitability for the bench."
• "Despite the best efforts of" Newt Gingrich, Rush Limbaugh "and others," Sotomayor's "confirmation process probably won't be about race," Eugene Robinson writes.
• Charlie Cook describes the back-and-forth over Sotomayor as a "ritualistic Kabuki dance, a rehearsal for the no-holds-barred brawl we can expect if one of the four conservatives on the Court retires while" Obama is president.
Thursday, May 28, 2009 6:50 PM
Princeton University was guilty of "an institutional pattern of discrimination" against Chicanos and Puerto Ricans, then-sophomore Sonia Sotomayor wrote in a letter published in the May 10, 1974 edition of the student newspaper, The Daily Princetonian.
Explaining this charge and the rest of a complaint filed by university students with the Health, Education and Welfare Department, Sotomayor's letter continued:
The facts imply and reflect the total absence of regard, concern and respect for an entire people and their culture. In effect, they reflect an attempt -- a successful attempt so far -- to relegate an important cultural sector of the population to oblivion.
As proof of these charges, Sotomayor said:
The facts of the complaint are these: 1) There is not one Puerto Rican or Chicano administrator or faculty member in the university; 2) There are two million Puerto Ricans in the United States and two and a half million more on the island itself. Yet there were only 66 Puerto Rican applicants this year, and only 31 Puerto Rican students on campus. While there are 12 million Chicanos in the United States, there were only 111 Chicano applicants and 27 students on campus this year; 3) Not one permanent course in this university now deals in any notable detail with the Puerto Rican or Chicano cultures.
Sotomayor's parents had moved from Puerto Rico to New York in search of better opportunities. Those opportunities ultimately came to include her admission to the university that she so sharply attacked. At Princeton, she was, among other things, co-chair of a group called Accion Puertorriquena.
In October 1974, Princeton allowed Sotomayor and two other students to initiate a seminar, for full credit and with the university's blessings, on the Puerto Rican experience and its relation to contemporary America.
Some may see the fact that Princeton awarded Sotomayor a summa cum laude degree and the prestigious Pyne Prize when she graduated in 1976 as evidence of her unparalleled brilliance in overcoming a "total absence of regard, concern, and respect" for people such as her.
And some may see Sotomayor's letter as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton's Board of Trustees.
Read the complete text of Sotomayor's 1974 letter and a 1974 story about the complaint in which she's quoted.
The Princetonian posts two other letters signed by Sotomayor while a student:
- 'The making of a dean'
- 'Rights of all'
Thursday, May 28, 2009 4:30 PM
As has occurred with dispiriting regularity in recent decades, the current debate over filling a vacancy on the Supreme Court has been marred -- already! -- by a considerable dose of demagogy and false factual claims. It would be nice to see the media truth-squadding such stuff, without the usual double standards.
Take, for example, the wildly overheated denunciations of Judge Sonia Sotomayor by Newt Gingrich and Rush Limbaugh, on the one hand, and the demonstrably untrue assertions that President Obama has repeatedly made about the Supreme Court's 2007 ruling against the now-famous Lilly Ledbetter, on the other.
Limbaugh has denounced Sotomayor as a "reverse racist" and a "hack" -- adding that "Obama is the greatest living example of a reverse racist, and now he's appointed one." Gingrich has also called her a racist and demanded that she withdraw.
"Hack?" Judge Sotomayor's legal opinions may not be the stuff of brilliance, as some liberal critics have complained. But she is an accomplished jurist with many admirers and a stellar academic record at Princeton and Yale law School. She is also an inspiring, up-from-modest-origins American-dream life story.
"Racist"? Limbaugh and Gingrich based this imprecation on Sotomayor's assertion in a 2001 speech that "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."
I, too, have criticized that assertion. But in the apt words of former Karl Rove aide Peter Wehner, now of the Ethics and Public Policy Center:
It is entirely appropriate to criticize those comments and Judge Sotomayor's decisions. But that is quite different, I think, from calling her a racist and insisting that she should withdraw. As a general matter, I think the term 'racist' is thrown around far too promiscuously and carelessly. ... Strong, spirited, even passionate debate can be useful, and even important, in the life of a nation. But civility and decency are vital as well.
Wehner's brief post -- "Challenge, With Civility" -- on Commentary's blog "Contentions" is worth a full read (as are all of Wehner's posts).
Obama's misrepresentations of the facts of the Ledbetter case are far less inflammatory but will take a bit more explaining.
Continue reading The Right Should Stop Demagoguing -- And Obama Should Stop Distorting Facts
Vice President Joe Biden says President Obama "hit a home run" by nominating Sonia Sotomayor for the Supreme Court. In an e-mail to supporters, Biden lauds Sotomayor's legal and personal experience and asks supporters to get engaged -- and of course donate -- by going to Organizing For America's Web site.
"Please join me in becoming a part of this historic moment for the Court and our country," Biden writes in the e-mail. "Add your name now to publicly show that you, too, 'Stand with Sotomayor.' In these crucial early hours, let us leave no doubt about the people's support for this extraordinary nominee."
The vice president's team, including Chief of Staff Ron Klain and counsel Cynthia Hogan, has been instrumental in the nomination process and will continue to be leading up to and through the confirmation hearings. Even though he was standing next to Obama and Sotomayor at the announcement on Tuesday, Biden hasn't spoken out on his own regarding the nomination -- until his e-mail.
This is an early sign that the administration plans to rally its online base leading up to the confirmation hearings. Obama introduced Sotomayor to Organizing For America supporters on Tuesday. But, relatively speaking, the White House was slow in taking this fight online. Interest groups were prepping a few weeks ago, Democratic lawmakers jumped all over the announcement via Twitter, and other groups wasted no time launching ads either praising or attacking Sotomayor.
Guides for past Supreme Court nominees say the key to success in the Senate is for the court pick to make a personal connection with senators -- whether it be a common bond over baseball or an alma mater. Sen. Amy Klobuchar, D-Minn, who joined Sen. Dianne Feinstein, D-Calif., as one of only two women on the Senate Judiciary Committee this year, said in an interview with NationalJournal.com that she's already identified just such a bond with Sonia Sotomayor: an encyclopedia set.
At his Tuesday announcement of Sotomayor's nomination, President Obama noted that the Bronx native's mom "bought the only set of encyclopedias in the neighborhood" to help educate her daughter. That detail struck Klobuchar, who grew up in middle-class Minneapolis suburb. "I love that part," the first-term senator said this week. "The encyclopedia, that was in a hallowed place in our house."
Like Sotomayor, Klobuchar is also a former local prosecutor, so she said she's looking forward to talking about criminal law and sentencing guidelines with the Supreme Court nominee. "The fact that she's been a prosecutor is very helpful," Klobuchar said. "When you've been in that kind of job, the law to you is not just a dusty book in your mom's basement."
Klobuchar said she prefers to focus on "common sense" questions that reflect her prosecutorial background -- on issues like victim rights, for example. But she said that if Republicans on the committee don't give Sotomayor enough of a chance to defend herself, she's not afraid to step in. "If it gets into a partisan circus, then we're into a different land," she said. As an example, Klobuchar cited a recent appellate court nominee who she thought was not given enough time by a Republican questioner to explain his decisions. Klobuchar used her turn on the dais to give him a chance to clarify his reasoning.
That said, Klobuchar added that she's not just going to play defense; she's got her own questions for the nominee. "How she views executive power -- I think that's going to be a key issue," Klobuchar said.
Hispanic interest groups are headed to the Senate in support of Sonia Sotomayor's nomination, and not for the first time. In 1998, after Sotomayor's nomination to the appellate court level had languished in the Senate for more than a year, a coalition of legal and community groups began to complain that Hispanic judicial nominees were being held up for much longer than non-Hispanics.
Lauren Bell, a political science professor at Randolph-Macon College in Ashland, Va., who was a visiting fellow on the Senate Judiciary Committee at the time, said that empirically it was true that Hispanic nominations took longer to get through the Republican-controlled Senate. "The Republicans said it wasn't about them being Hispanic, it was about them being activists," Bell said.
Nonetheless, the Hispanic National Bar Association and other groups undertook a major lobbying effort. Ramona Romero, president of the Hispanic National Bar Association, was head of the organization's District of Columbia affiliate at the time. "A group of the Hispanic leaders who are interested in a fair, diverse and independent judiciary took notice of the fact that the Senate was not performing its duty to advise and consent in a fair and appropriate way, and we did take notice and we did act on it," she said.
Their personal appeals and visits to senators attracted the attention of New York Republican Alfonse D'Amato -- who was up for reelection that year. In an interview this week, D'Amato said he appealed to Senate leaders to bring Sotomayor and other Hispanic nominees to a vote. "I really did push for it because she had strong support from the legal community as well as the Hispanic community," D'Amato said.
The Judicial Confirmation Network pushed back today after White House press secretary Robert Gibbs and Sen. Charles Schumer, D-N.Y., downplayed Supreme Court nominee Sonia Sotomayor's comments in 2005 at Duke University about appellate judges making policy from the bench. Gibbs said critics were taking Sotomayor's words "out of context."
At Duke, Sotomayor said: "Court of Appeals is where policy is made. And I know, and I know this is on tape and I should never say that, because we don't make law, I know.... I'm not promoting it, and I'm not advocating it.... Having said that, the Court of Appeals is where, before the Supreme Court makes the final decision, the law is percolating."
Read more about this over at NationalJournal.com's Under The Influence blog.
Just under 50 percent of respondents in a one-night poll Gallup conducted the day President Obama nominated Sonia Sotomayor for the Supreme Court rated his pick as "excellent" or "good." Two in every 10 described the choice as "only fair," while just under 15 percent said "poor." Twenty percent didn't have an opinion, the most Gallup has found in Supreme Court nominee polling dating back to John Roberts' nomination in the summer of 2005.
While Americans' initial reactions to the last four high court nominees have been positive on balance, Sotomayor's net positive of 14 percentage points is a strong second behind Roberts' 17 points. Samuel Alito was plus-4 and Harriet Miers was plus-3, both in 2005.
When broken down by political party and gender, the reaction becomes more polarized. While nearly three-quarters of Democrats rated Sotomayor's nomination as either "excellent" or "good," fewer than 30 percent of Republicans indicated so. On top of that, more than one-quarter described it as "poor." About 22 percent of independents said they have no opinion, compared to 19 percent of Republicans and only 11 percent of Democrats, perhaps reflecting the political and ideological bent of the Supreme Court debate.
Women generally rated the Sotomayor pick more positively than men, but the biggest disparity between the genders shows up in the bottom end of the scale. Just under 20 percent of men said the pick was "poor," while only 7 percent of women indicated so, the widest gender gap in Gallup's recent polling. The previous nomination, Bush's pick of Alito, produced an 8-point difference. Miers and Roberts had separations of just 1 percentage point each.
When asked what factors they think played into Obama's decision, respondents overwhelmingly said her nearly 20 years on the appellate bench (61 percent called it "very important"), followed by her intellect (59 percent) and her views on major issues and past judicial decisions (52 percent). Reinforcing past polling, the two that respondents thought factored into the decision least were her gender and ethnicity (39 percent and 34 percent, respectively).
Here's Gallup's breakdown of party reaction for the last four Supreme Court nominees:
• "Senate Republicans have yet to decide how tough they will be in grilling Judge Sonia Sotomayor in her confirmation hearings, but this is clear: The Supreme Court nominee already has shown an ability to withstand rigorous questioning," the Washington Post reports.
• "Sotomayor launched her Senate outreach campaign" Wednesday "through phone calls to key Democrats and Republicans and will begin face-to-face meetings when lawmakers return to the Capitol next week," the Post's 44 blog reports.
• Another Post blog, The Fix, reports on five senators who could play important roles in the upcoming confirmation process but who aren't the main leaders on this issue.
• "Many lawyers and scholars who have examined her record closely say that her" appellate opinions "are unpredictable, and do not put her clearly in a pro- or anti-business camp," the New York Times reports.
• The Wall Street Journal reports on how the concept of "legal realism" factors into Sotomayor's judicial philosophy.
• "In the months leading up to" Sotomayor's selection, "the White House methodically labored to apply lessons from years of nomination battles to control the process and avoid the pitfalls of the past, like appearing to respond to pressure from the party's base or allowing candidates to be chewed up by friendly fire," the New York Times reports.
• If Sotomayor is confirmed, "she will be only the twelfth Roman Catholic justice in history," the Blog of Legal Times reports. "But what is remarkable is that six of those 12, if you include her, will be on the Court that convenes in October."
• The Wall Street Journal's Law Blog conducts a Q&A with Douglas Kmiec, a former GOP White House adviser, on the Catholic factor.
• "Sotomayor, already facing bitter criticism from gun rights advocates for an appeals court decision she joined last January, may have to choose whether to take part when the constitutional issue at stake comes up before the Supreme Court (assuming that she is confirmed)," SCOTUSblog reports. "As of now, the first case in line on that issue is the one on which she ruled as a judge of the Second Circuit Court -- Maloney v. Cuomo."
• "Both parties braced for a summertime confirmation battle over" Sotomayor, "with the White House gathering a team to push her through, and conservative critics sharpening attacks on her past speeches and writings," the Wall Street Journal reports.
• "A perennial subject -- abortion -- surfaced again as a question mark and an emblem of other controversial topics, worrying some traditionally liberal groups that the White House may be too intent on portraying Sotomayor as an independent moderate," the Washington Post reports.
• "Newt Gingrich has called on" Sotomayor "to withdraw her nomination," CQ's Legal Beat reports.
Commentary after the jump
The Senate Judiciary Committee released the questionnaire it has asked Sonia Sotomayor to fill out leading up to her confirmation hearings.
Read the 10-page questionnaire here.
Updated at 9:07 a.m. on May 28.
A heated confirmation battle may seem inevitable for any Supreme Court nominee, but a majority of right-leaning bloggers polled by NationalJournal.com say the GOP should keep it cool against Sonia Sotomayor.
Asked if it would be "politically smart for Republicans to try to block" Sotomayor's confirmation, 52.9 percent of the 17 right-of-center bloggers surveyed Tuesday and today said no. Meanwhile, all 20 left-leaning bloggers in the poll agreed with them.
Several right-leaning bloggers noted that Senate Republicans likely don't have the votes to stop Sotomayor's confirmation and said they have nothing to gain from blocking her. "Ultimately, I believe the confirmation is not a request for ideological approval, but a check against corruption and incompetence," said Jon Henke of The Next Right. Rob Port of Say Anything said an attempted block would be "a waste of time" and asked, "Why not let it go through and concentrate on other priorities like nationalized health care and cap-and-trade?"
But Dan McLaughlin of Baseball Crank, who voted yes, said, "It's clear that Republicans need to lay down a marker on how liberals vs. conservatives view the role of the courts. Actually defeating the nomination, which remains an unlikely result, may end up being irrelevant to that goal."
On the left, several bloggers said playing hardball on Sotomayor would seriously damage the GOP's relations with Latinos. "They mess this one up and they'll carry it as a cross into 2010, 2012, even 2016," said Liza Sabater of CultureKitchen. As for early tactics, "I don't think accusing her of reverse racism is going to do them any more good than accusing Obama of 'palling around with terrorists,'" said Ellen Brodsky of News Hounds.
National Journal's Political Insiders will weigh in on Sotomayor in this week's magazine.
The first advertising skirmish between liberals and conservatives began today over President Obama's nomination to promote 2nd Circuit Court of Appeals Judge Sonia Sotomayor to the Supreme Court.
The liberal Coalition for Constitutional Values launched a 30-second television spot that will run on network and cable news programs promoting Sotomayor's qualifications to succeed retiring Justice David Souter. A coalition spokesman called the ad "a solid six-figure buy" that will run initially for a week. The coalition includes the Alliance for Justice, People for the American Way and Leadership Conference on Civil Rights.
From conservatives, the Judicial Confirmation Network started running an Internet ad critical of her nomination. The ad is directed at highly trafficked Web sites and about 6 million conservative activists, the group said.
Subscribers to CongressDaily can read the rest of the story here.
If you've been following the nomination news as closely as NationalJournal.com, you may have noticed that the lawyer-bloggers over at SCOTUSblog have been analyzing Sonia Sotomayor's opinions since May 15. You can find those posts those posts here and here and here and here and here and finally, posted at 7:34 a.m. yesterday, here.
So why did SCOTUSblog decide to focus on Sotomayor substantially more than other front-runners such as Elena Kagan or Diane Wood?
According to Tom Goldstein, founder of the blog and partner at Akin Gump Strauss Hauer and Feld, Sotomayor always "seemed like the logical political choice." Predictions like this -- he said he did a similar analysis of John Roberts leading up to his nomination in 2005 -- aren't "that complicated."
One last-minute assurance Goldstein had came from comments Obama made over the weekend that he was looking for a judge who had more than "ivory tower learning."
"It seemed to me that it was going to be really hard to explain" Kagan and Wood in light of that comment, Goldstein said. "They're really smart and good people, but their strengths don't come from personal experiences. The president was signaling that he was headed in the direction of Sotomayor."
It wasn't smooth sailing the whole time. Soon after Goldstein published his last post about Sotomayor early Tuesday morning effectively predicting wholeheartedly that she was going to be the pick, he got an e-mail saying the rumored pick was 7th Circuit Court of Appeals Judge Ann Williams. His initial thought? "I'm an idiot." Not in the end.
• The New York Times examines several of Judge Sonia Sotomayor's opinions, calling them "marked by diligence, depth and unflashy competence."
• The Washington Post compiles Sotomayor's past statements on notable issues and cases.
• "Sotomayor has built a record on such issues as civil rights and employment law that puts her within the mainstream of Democratic judicial appointees," the Wall Street Journal reports. "Among the cases she has heard during her 15 years on the federal bench -- and one that will be examined closely through her confirmation process -- is one now pending before the Supreme Court."
• "Aside from commending the president's pick of" Sotomayor, "most liberal groups kept their comments to a minimum so that she could hold the spotlight," the New York Times reports. "But privately several acknowledged that they begin this debate with far fewer resources than they could marshal during the Bush administration."
• "As unique as Sotomayor is... she has common bonds with several justices that should help her fit in with the Court, which prizes collegiality," the National Law Journal reports. Like Souter, "Sotomayor has been a trial judge. Like Samuel Alito Jr., she has been a prosecutor. Like Clarence Thomas, she grew up in poverty and mostly without a father. Like John Roberts Jr., she was a litigator in private practice. And like Antonin Scalia and Ruth Bader Ginsburg, she grew up in New York City."
• "An all-out assault on Sotomayor by Republicans could alienate both Latino and women voters, deepening the GOP's problems after consecutive electoral setbacks," the Washington Post reports. "But sidestepping a court battle could be deflating to the party's base and hurt efforts to rally conservatives going forward."
• ABC News reports on how Obama chose Sotomayor.
• The National Law Journal reports that "the American Bar Association's qualification review of" Sotomayor "is underway." The ABA's press release can be found here.
Commentary after the jump.
President Obama has signaled time and again he wants his Supreme Court nominee confirmed by August when Congress goes on recess. In a briefing Tuesday at the White House, senior administration officials reiterated that goal but wouldn't say when they hope the confirmation hearings begin.
Republicans had asked for at least 60 days to review any nominee before hearings begin, but Senate Majority Leader Harry Reid has already rebuffed that request. Still, based on historical trends and estimates by experts that hearings would need two weeks, there appears to be enough time if the hearings take place at the end of July.
In a post a few weeks ago, NationalJournal.com examined timelines for nomination announcements and confirmation hearings dating back to President Ronald Reagan's first nominee, Sandra Day O'Connor in 1981. The average amount of time between nomination and confirmation of a new justice is 80 days. By making his announcement on Tuesday, the president has left 73 days between now and his Aug. 7 deadline.
The longest waiting period was 107 days when President George H. W. Bush nominated Clarence Thomas in 1991. In that case, Bush didn't nominate Thomas until July 1, and the summer recess ended up prolonging the process: Thomas wasn't confirmed by the Senate until Oct. 15. The shortest turnaround lasted 50 days, when President Bill Clinton nominated Ruth Bader Ginsburg in August 1993, just before the congressional recess.
Complete timelines available after the jump.
Tuesday, May 26, 2009 9:29 PM
Stuart Taylor Jr. sits down with TheAtlantic.com's Bob Cohn for a conversation in reaction to the nomination of Sonia Sotomayor. Read a more detailed take on the political ramifications in an earlier post on The Ninth Justice.
Updated at 9:45 a.m. on May 27.
White House press secretary Robert Gibbs spent more than three minutes today explaining away a short YouTube clip in which Sonia Sotomayor says appeals courts make policy -- before clarifying that she's not "advocating" that idea.
"We don't make law, I know. OK, I know. I know. I'm not promoting it, I'm not advocating it," she says in a 2005 panel discussion at Duke University after noting the session was being videotaped. The most popular version of the clip began Tuesday morning with approximately 20,000 views but has since shot past 140,000. And it's become fodder on conservative Web sites such as the Judicial Confirmation Network.
Gibbs dismissed the video, saying "the president is very convinced that people will look at the full context of this and not rely on, as I said, a small, short, out-of-context YouTube clip."
Watch both videos after the jump.
Tuesday, May 26, 2009 5:01 PM
Shortly after President Obama announced her as his choice for the Supreme Court, Judge Sonia Sotomayor broke new ground this morning when she became the first nominee to the nation's highest court to get flamed on Twitter.
At 9:18 am -- moments after her name emerged in media reports as the nominee, Rep. Patrick McHenry, R-N.C., became the first of many members of Congress to offer their 140-character 2 cents on the woman likely to ascend to the court later this summer. McHenry's take? "Sotomayor in 2005: 'court of appeals is where policy is made.' Did Obama's nominee fail 8th grade civics?"
The GOP has made a concerted effort to dominate Twitter and other social media outlets, so it's not surprising that the first Sotomayor-related congressional tweet came from a Republican. What's more interesting is the number of tweets in support of Obama's nominee that have poured forth from Democrats. As any avid Twitter follower can tell you, congressional Dems who use the online messaging service usually sit on the sidelines during policy debates, instead reserving their tweets for chatting with followers or broadcasting where they are at a given moment.
A good example of the GOP's dominance came earlier this year in the fight over the omnibus spending bill. Back then, Sen. John McCain, R-Ariz., used the messaging service to effectively mount an attack on what he called wasteful spending in the bill. The attack managed to break into the national media and, arguably, ended up affecting the Senate debate. Dem tweeters largely steered clear of the back-and-forth, ceding the online space to the bill's opponents.
With the coming Sotomayor fight, however, Dems don't seem as content to let the GOP run the table on Twitter. So far today, Missouri Sen. Claire McCaskill, Connecticut Sen. Chris Dodd and New Jersey Sen. Bob Menendez have tweeted their strong support for Obama's pick. Even newly-minted Democrat Sen. Arlen Specter of Pennsylvania joined in with his own strongly pro-Sotomayor message shortly after the nominee was announced.
Whether Sotomayor will find smooth sailing in the Senate is somebody else's guess. But one thing is certain. In the age of the Twittering politician, Sotomayor's got the support she needs among Dems to face off against the GOP tweetmachine.
With the Senate gearing up for its third look at Judge Sonia Sotomayor in 17 years, the politics of past votes will factor in the debate, with Republicans suggesting they will find fault with her rulings.
But absent embarrassing revelations during the confirmation process, Republicans have acknowledged they likely lack the votes to block her ascension to the Supreme Court.
"Senate Republicans will treat Judge Sotomayor fairly," Senate Minority Leader Mitch McConnell, R-Ky., said. "But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences."
Nearly every Republican member of the Judiciary Committee, which will hold confirmation hearings, used a similar script. Judiciary ranking member Jeff Sessions, R-Ala., for example, said panel Republicans would examine her "previous judicial opinions, speeches and academic writings to determine if she has demonstrated the characteristics that great judges share: integrity, impartiality, legal expertise and a deep and unwavering respect for the rule of law."
Sotomayor was nominated as a district court judge by President George H.W. Bush in 1992 and to the 2nd U.S. Circuit Court of Appeals in 1997 by President Bill Clinton, winning Senate confirmation both times.
CongressDaily subscribers can read the complete story here.
Tuesday, May 26, 2009 3:01 PM
Pres. Obama introduced Sonia Sotomayor today to his political wing, Organizing for America.
Tuesday, May 26, 2009 2:50 PM
Though GOP lawmakers have been tentative in offering any criticism of SCOTUS nominee Sonia Sotomayor, conservative bloggers today exhibited less restraint. They're girding for a fight:
• Michelle Malkin: "So, it's Sonia Sotomayor. Identity politics triumphs."
• John Hawkins: "Barack Obama picked Sonia Sotomayor because she's Hispanic, female, and is willing to put liberal political concerns above the Constitution."
• Ilya Shapiro: "Judge Sotomayor is not one of the leading lights of the federal judiciary and would not even have been on the shortlist if she were not Hispanic."
• Ramesh Ponnuru: "[Sotomayor is] Obama's Harriet Miers."
• Erick Erickson: "Conservatives rejoice. Of all the picks Obama could have picked, he picked the most intellectually shallow."
Sen. Pat Leahy (D-VT), chairman of the Senate Judiciary Committee, weighed in on the 1998 nomination of Sonia Sotomayor to the 2nd Circuit, according to a clip provided by C-SPAN.
Leahy: "Judge Sonia Sotomayor is just such a qualified nominee, and she is one being held up by the Republican majority, apparently because some on the other side of the aisle believe she might one day be considered by President Clinton for nomination to the U.S. Supreme Court, should a vacancy arise."
Nate Silver has a breakdown of how the vote went and notices that current senators approved by a margin of 35 to 11.
Tuesday, May 26, 2009 2:43 PM
Commentators discuss President Obama's choice of Sonia Sotomayor to replace Justice David Souter.
Tuesday, May 26, 2009 11:23 AM
Has President Obama appointed the first Hispanic to the Supreme Court? President Hoover may have beaten him to the punch in 1932 with the appointment of Benjamin Nathan Cardozo to succeed Oliver Wendell Holmes. Whether the nation has already had its first Hispanic justice depends on the answer to a seemingly simple question: Who's Hispanic?
Read more on that question and its implications for the court as well as U.S. demographics in this piece from the archives.
With her announcement today as President Obama's choice to replace Justice David Souter, Sonia Sotomayor became the 159th nomination to the Supreme Court, a list that begins with the court's seven original justices and ends most recently with Samuel Alito. Of the previous 158 nominations, 122 were confirmed by the Senate.
Subscribers to CongressDaily can view the complete list here.
I have given some reasons (noted below) why Sonia Sotomayor might be an especially controversial pick with conservatives and some centrists -- not to mention yours truly.
So what political calculation might underlie President Obama's decision to nominate her anyway, despite his various suggestions that he would like to make a consensus pick?
It's possible that Obama was simply wowed by her up-from-modest-circumstances life story, her supposed "empathy" for the poor and powerless, her summa cum laude performance at Princeton University, her judicial opinions on obscure subjects, or her performance when Obama interviewed her.
But the political payoff of naming the first Hispanic justice -- and a woman to boot -- seems to me the key. This is a shrewd nomination politically, if not necessarily a good one jurisprudentially, and not only because of the obvious payoff with Hispanic voters.
The choice of Sotomayor also puts Republicans and moderate Democrats who may be deeply unhappy with her jurisprudence in a lose-lose position, and Obama in a win-win position.
Updated at 8:37 a.m. on May 26.
The New York Times is reporting that President Obama will announce Sonia Sotomayor as his nominee for the Supreme Court at 10:15 a.m.
Will President Obama be bringing some SCOTUS-related material along with him to Camp David for Memorial Day weekend? Perhaps, according to press secretary Robert Gibbs.
"I think he's looking forward to spending Memorial Day weekend with his family," Gibbs said during today's press briefing. "I don't doubt that he'll take some reading along with him, and work on his selection."
Meanwhile, criticism is mounting against appellate judge and short-lister Diane Wood. National Review's Ed Whelan -- who has written several posts criticizing Wood -- offered a summary argument against her this morning. Later, he followed up with yet another post contrasting her position on military commissions with Obama's.
Wood has received praise, though, from experts on the left and right of the political spectrum. Doug Kendall, president of the progressive Constitutional Accountability Center, calls her an "intellectual leader on one of the best courts of appeals in the country." National Journal's own Stuart Taylor Jr. wrote on this blog yesterday that Wood's "judicial record has won the respect of conservative as well as liberal colleagues and many other experts as well."
Republicans, meanwhile, are gearing up for whoever awaits them at the confirmation hearings. Senate Judiciary Committee ranking member Jeff Sessions, R-Ala., announced today that Elisebeth Cook will be his chief counsel for Supreme Court nominations. Per CQ's Legal Beat, Cook was an assistant attorney general at the Justice Department's Office of Legal Policy during the George W. Bush administration.
Something else to watch out for after the long weekend: On Tuesday, the California Supreme Court will hand down its decision on whether or not to uphold Proposition 8, the ban on gay marriage. Observers believe this decision could influence the confirmation hearings and trigger more questioning over the nominee's record on gay rights. The Volokh Conspiracy blog has some thoughts on this issue.
Friday, May 22, 2009 5:54 PM
We at The Ninth Justice are collecting examples of memorable things that have been said in connection with Supreme Court appointments, and we hereby solicit suggestions to make our short list a bit longer.
The first category we have identified consists of comments from prospective nominees who wanted no part of the job.
Our earliest example is John Johnson, a Supreme Court litigator. According to an October 8, 1957 letter from Dean Acheson to President Truman, Johnson explained his decision to turn down President Grover Cleveland's offer of a nomination by saying: "I would rather talk to the damned fools than listen to them." (We have not yet learned exactly when this was. Cleveland was president from 1885-1889 and 1893-1897.)
Gov. Mario Cuomo of New York was a bit more polite in explaining his own lack of interest when President Clinton was seriously considering him for a nomination in 1993. In an interview with the Albany Times-Union, Cuomo described how the Court looked from the perspective of a big-time political figure: "They put you in this big room. They slam this mahogany door shut. You're entombed. When the World Trade Center collapses, you can't go on television and tell people not to worry."
Clinton still wanted to add a political figure of stature and broad experience to the Court, whose members were then drawn mainly (and now entirely) from relatively cloistered federal courts of appeals. So when another vacancy came along in 1994, Clinton offered the nomination to Senate Majority Leader George Mitchell.
Mitchell surprised a lot of people by saying no. He cited his need to stay on as majority leader to help push the Clinton health care plan through Congress. But that may not have been his only reason, according to Newsweek. Close friends said that the 60-year-old divorcee, who also announced in 1994 that he would not seek a fourth Senate term, wanted to "live a little" and was "at heart a bon vivant" who yearned to have more of a social life, to work less, and to earn a lot of money.
A handful of minority bar associations met with White House officials last week to discuss nominating a person of color to the high court.
The discussion took place at the Coalition of Bars of Color annual conference, and NationalJournal.com has confirmed that the National Native American Bar Association, the National Asian Pacific American Bar Association, and the Hispanic National Bar Association all took part in the meeting.
The meeting came after bar associations representing Asian Americans and Native Americans sent letters to the White House urging the administration to nominate someone coming from their respective demographics.
Both letters include names of people the groups deem qualified for the high court, such as John Echohawk, executive director of the Native American Rights Fund, and Susan Oki Mollway, a federal district judge in Hawaii. But while the administration officials seemed open to the groups' concerns, they would not discuss any specific candidates in the meeting, said National Native American Bar Association President Heather Thompson.
While there has been much discussion of the possibility of nominating a Hispanic or African American, Asian and Native American interests have gone largely unheard. Thompson said this was the first such letter her organization has sent regarding a high court nomination. "Other associations have been more organized about putting names forward," she said.
"While much of America is underrepresented on the Supreme Court, the U.S. has never appointed an individual indigenous to this country to its Supreme Court," the letter from the Native American group states. It goes on to emphasize that there "is not a single Native on the federal bench in the entire country, and to the best of our knowledge there has never been a Native American Supreme Court clerk." Thompson added, however, that "we would support any person of color that was put forward on the bench."
The Women's Bar Association of D.C. also sent a letter to Obama Thursday urging him to appoint a woman.
From the May 23 issue of National Journal:
As conservative groups mobilize to oppose the next Supreme Court nominee, President Obama and Vice President Joe Biden will be hard-pressed to complain if the debate centers not on the nominee's resume but on his or her ideology.
After all, when Obama and Biden served in the Senate, they opposed nominees who, by all accounts, had superior brainpower and impressive credentials. They voted no because of philosophical differences with the president's choices.
Biden set the framework for this approach 22 years ago when President Ronald Reagan nominated Robert Bork to the Supreme Court. As Judiciary Committee chairman, Biden sought to upend the Senate's usual approach to evaluating presidential choices. Many of the major nomination battles in the past had revolved around the perceived personal shortcomings of a candidate, but Biden shifted the spotlight toward the person's ideology.
Subscribers to National Journal can read the full story here.
From the May 23 issue of National Journal:
"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." -- Judge Sonia Sotomayor, in her Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California (Berkeley) School of Law in 2001
The above assertion and the rest of a remarkable speech to a Hispanic group by Sotomayor -- widely touted as a possible Obama nominee to the Supreme Court -- has drawn very little attention in the mainstream media since it was quoted deep inside The New York Times on May 15.
It deserves more scrutiny, because apart from Sotomayor's Supreme Court prospects, her thinking is representative of the Democratic Party's powerful identity-politics wing.
Sotomayor also referred to the cardinal duty of judges to be impartial as a mere "aspiration because it denies the fact that we are by our experiences making different choices than others." And she suggested that "inherent physiological or cultural differences" may help explain why "our gender and national origins may and will make a difference in our judging."
So accustomed have we become to identity politics that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males.
Indeed, 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.
Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority.
Continue reading Taylor's column here.
• "The Supreme Court job interviews are continuing at the White House," the New York Times reports. "President Obama has met with at least one other finalist for the job, an official confirmed Thursday, bringing the number of face-to-face interviews to at least two."
• Via the How Appealing blog, the Daily Journal of California reports that the White House has been in contact with Judge "Sonia Sotomayor of the 2nd Circuit, and long-shot contender Justice Carlos R. Moreno of the California Supreme Court."
• "The inclusion of Canadian-born Michigan Gov. Jennifer Granholm on some short lists of potential Supreme Court nominees has raised awareness that there's no requirement that justices be born in the United States," the Blog of Legal Times reports.
• The Legal Times also reports that Republicans on the Senate Judiciary Committee delayed votes on two of Obama's appellate judicial nominees, David Hamilton and Andre Davis.
• Via video, CQ's Legal Beat "takes a look at a few of the more notable -- and notorious -- nomination hearings of the past."
• "Should judges have a representative in the Cabinet? Supreme Court Justice Stephen Breyer seems to think so," the National Law Journal reports.
Commentary after the jump.
When President Obama announces his choice to replace retiring Justice David Souter, Sen. Jeff Sessions will also be in the spotlight.
Sessions, R-Ala., who became the ranking member of the Senate Judiciary Committee when Arlen Specter, D-Pa., switched parties, has made clear that Republicans will be prepared to quiz the nominee to make sure that he or she will not be an "activist" on the bench. Such activist judges are "a threat to the rule of law" because they would allow their personal views to trump their commitment to the law, Sessions said.
Sessions spoke with National Journal's Kirk Victor in his office Wednesday on the confirmation process, the Roberts court and what goes into his vote. Edited excerpts follow. A condensed version appears in the May 23 National Journal.
NJ: The Judiciary Committee is the most rancorous, partisan panel in the Senate. Do you figure that it will remain that way for the foreseeable future?
Sessions: Well, it has some very skilled attorneys with strong views who are not shrinking violets. That's for sure. And nobody's a potted plant. I am hoping, though, that we could raise the level of confirmation discussion, questioning, and debate. I don't know why that can't be done.
NJ: Chairman Patrick Leahy, D-Vt., opposed your nomination for a District Court seat in 1986. How has that affected your relationship with him?
Sessions: It doesn't affect me at all. I just resolved not to worry about that when I came here. And I haven't. I have said over the years, though, that whether dealing with a Democratic nominee or Republican, they deserve a fair shake. Most people believe that, although sometimes they have forgotten it.
Continue reading Sessions: Republicans On Guard For An 'Activist'
In another sign that abortion is sticking around as a Supreme Court sticking point, Americans United for Life sent a letter to members of the Senate Judiciary Committee this morning highlighting a new poll that touched on issues related to some short-listers.
Four poll questions highlighted positions or actions taken by Solicitor General Elena Kagan, outgoing Georgia Supreme Court Chief Justice Leah Ward Sears, Stanford Law School professor Kathleen Sullivan and Massachusetts Gov. Deval Patrick. Other questions touch on broader topics, such as using tax dollars to pay for abortions in the U.S. or abroad. The poll found consistent support for abortion opponents' side in each case -- except for the 57 percent who approved of "buffer zones" keeping protesters at a distance from clinics, an issue identified with Patrick.
Asked for a comment, Ted Miller, communications director for NARAL Pro-Choice America, wasn't surprised the issue is being pushed. "Discussion about the right to privacy will be a part of the Supreme Court nomination process, as it has been in previous nominations," he said. "What's important to note is that, time and time again, Americans have consistently said they want the court to uphold Roe v. Wade."
The poll was conducted in mid-May by the Polling Company, a private organization whose political clients tend to be right-leaning.
I have shuffled my rankings a bit, moving Judge Diane Wood to the top of my list. The reasons include the news that Judge Wood was the first SCOTUS candidate to meet with President Obama and reports that the White House is especially impressed with her display of intellectual power and judicial temperament in 14 years on the federal appellate bench. Wood's judicial record has won the respect of conservative as well as liberal colleagues and many other experts as well.
I emphasize, again, that these rankings do not reflect my personal preferences, but rather my educated guesses as to which prospects seem most likely to win the nomination. I also stress that such guesses are no more scientific than handicapping horse races. Those who know the president's thinking on this don't talk, and those who talk don't know.
Moving Elena Kagan from first to second, for example, is no reflection on her other than the fact that for all her assets, she has not been a judge and therefore has not had the same opportunity as Diane Wood to compile an outstanding record on the bench.
I've also dropped Leah Ward Sears from fourth to seventh. While I still have reason to think that she is an outstanding candidate, we haven't heard much about her from the mentioners who are closest to the real insiders. One reason may be that the political payoff for Obama may be greater if he picks a Hispanic-American than if he picks an African-American.
Here are the new rankings:
1. Diane Wood
2. Elena Kagan
3. Janet Napolitano
4. Jennifer Granholm
5. Sonia Sotomayor
6. Vanessa Ruiz
7. Leah Ward Sears
8. Valerie Jarrett
9. Pam Karlan
10. Merrick Garland
• "President Obama has interviewed his first prospective Supreme Court candidate, sitting down privately in the White House for a conversation with Judge Diane P. Wood, an official confirmed Wednesday," the New York Times reports.
• Wood, speaking at a Georgetown University Law Center conference Wednesday, "said she had long planned to attend the conference... But she ended the chat when asked whether she would be meeting with anyone from the White House on her trip here," the Washington Post reports. "'No, no, I'm not answering any questions on that,' she said with a laugh before moving on. An individual who is familiar with the vetting process said the meeting had already taken place, as part of a series of sessions with potential nominees that are expected to continue in the coming days."
• Also speaking at the Georgetown conference, "retiring Supreme Court Justice David Souter made a powerful plea for re-educating the American public about the fundamentals of how government works," the Blog of Legal Times reports.
• "While much of Washington speculates on who will succeed" Souter, "the retiring -- in every sense of the word -- jurist revealed Wednesday what he will do upon leaving the bench," the Wall Street Journal reports.
• "Sen. Arlen Specter has given his list" to Obama, Legal Times reports. "The former chairman of the Senate Judiciary Committee said today that Obama had asked him" to name some possible SCOTUS candidates. "I submitted four names -- all women, and none who owns a black robe," Specter said.
• USA Today remembers some past "key moments in the selection process."
Commentary
• Wood is profiled by Kristina Moore at SCOTUSblog, Ed Whelan of the National Review and Jeffrey Rosen at The New Republic.
• Jack Balkin does a "thought experiment" about how it might work if there was regular appointment of high court justices.
Wednesday, May 20, 2009 12:57 PM
What is "judicial activism"? How about "strict constructionism"? The answers mirror the debate over the Supreme Court itself, but the short version might be: It depends.
In a National Journal cover story written days after President Bush nominated John Roberts for the court in 2005, Stuart Taylor Jr. delved into what kind of justice Roberts could be. His analysis of the terms of debate could shed some light on the coming discussion of President Obama's first nominee.
Below are excerpts from his story. Subscribers can read the full story here.
Words, words, words. What do they tell us about John Roberts, who has expressed doubt about whether a judge should "have an all-encompassing philosophy"? Or about the other people to whom such labels are affixed? How can you gauge whether Roberts is likely to be your kind of justice? Does it come down to divining his political views about the big issues? Is law, like war, simply the extension of politics by other means?
Both the importance and the difficulty of capturing in a word, a phrase, or even an entire news story the essence of any Supreme Court candidate -- especially one with as ideologically unrevealing a paper trail as Roberts's -- call to mind an aphorism of Justice Oliver Wendell Holmes. "The chief end of man is to form general propositions," said Holmes, but "no general proposition is worth a damn."
Generalize we must, however, whether to prognosticate about this nominee or to evaluate the Bush approach to judge-picking generally. And that involves exploring what Bush and other conservatives mean by "strict constructionism" (good) and "judicial legislating" or "judicial activism" (bad); whether they have faithfully followed their professed principles; how consistently these principles can be applied in today's world; and whether most Americans would want them consistently applied.
Rest of the story after the jump.
• "President Barack Obama began interviewing potential Supreme Court candidates Tuesday, while a senior White House official defended the president's stated preference for a nominee who will give the powerless 'a fair shake,'" the Wall Street Journal reports.
• "Obama would enjoy at least one advantage should he wait until Congress' Memorial Day recess next week to announce his Supreme Court nominee," CQ's Legal Beat reports. "Republican senators likely to take the lead in responding will be scattered around the country -- and say they don't necessarily have plans to rush back to Washington if a nominee is announced."
• "Abortion has re-emerged as a hot issue, and if history is any indication, it will get even hotter when" Obama "makes his Supreme Court nomination," NationalJournal.com reports.
• The Washington Post reports that Sen. Arlen Specter, D-Pa., is expected to discuss the process of replacing Justice David Souter at the American Law Institute's annual meeting today at the Renaissance Mayflower Hotel.
• If Obama "were to nominate former Arizona Gov. Janet Napolitano to the Supreme Court, it would become his third big gift to the state's Republicans," the Arizona Republic reports.
• Massachusetts "Gov. Deval Patrick cozied up to" Obama "in a highly anticipated Washington, D.C., meeting yesterday, but Obama aides weren't saying whether the talk turned to an open seat on the U.S. Supreme Court," the Boston Herald reports.
• As Obama "continues his secretive vetting of potential SCOTUS nominees, legal scholars and media observers are throwing out even more possibilities," NationalJournal.com reports.
Commentary after the jump
The short list may be getting shorter, but the long list is only getting longer. As President Obama continues his secretive vetting of potential SCOTUS nominees, legal scholars and media observers are throwing out even more possibilities. These may not be household names, but they offer qualities currently lacking on the high court -- or so the arguments go.
The National Law Journal's Marcia Coyle sought out more than a dozen Supreme Court and constitutional law experts to get their take on whom Obama should nominate. While nearly all agreed it would be a good idea for the president to pick a woman or minority, they also suggested some "off-the-grid" white male candidates.
After the jump is an addendum to our "long list" including these contenders as well as several dark horses named in an NPR story this weekend. Click here for the full list. Know someone who has been rumored as a possible candidate but who's not on this list? E-mail Amy Harder.
Abortion has re-emerged as a hot issue, and if history is any indication, it will get even hotter when President Obama makes his Supreme Court nomination.
Obama -- who first spoke out for a nominee with "empathy" before a Planned Parenthood audience in 2007 -- rekindled conservatives' wariness over the weekend with his speech at the University of Notre Dame, calling for "fair-minded" dialogue and "common ground."
Charmaine Yoest, president of Americans United for Life, found Obama's speech at Notre Dame troubling in light of the names at the top of his short list. "He continues to want to use rhetoric to describe a mythical common ground while at the same time pursuing a real radical actual agenda," Yoest said. Her group recently released a report criticizing possible nominees such as Solicitor General Elena Kagan, appellate judges Sonia Sotomayor and Diane Wood, Homeland Security Secretary Janet Napolitano and outgoing Georgia Supreme Court Chief Justice Leah Ward Sears.
Across the aisle, neither the Planned Parenthood Action Fund nor Democrats For Life would speculate on how the issue will play out with no nominee yet announced. Democrats For Life Executive Director Kristen Day said she would "like to see someone a little more moderate on the abortion issue," but declined to comment specifically about Obama's short list. "When he picks his nominee, we'll talk to pro-life Democrats and formulate an opinion about where we are," Day said.
New polling shows Americans shifting to the right on abortion. On Friday, Gallup reported that more Americans consider themselves "pro-life" than "pro-choice" for the first time since the polling company began asking the question in 1995. In addition, new numbers from the Pew Research Center show support for legal abortion falling. Gallup concluded that "the dominant position on this question remains the middle option, as it has continuously since 1975: 53 percent currently say abortion should be legal only under certain circumstances."
Continue reading Abortion Debate Intensifies, Awaits Nominee
Homeland Security Secretary Janet Napolitano, rumored to be in the running for the Supreme Court nomination, is keeping mum on her chances. Over breakfast with a roomful of reporters in Washington this morning, the former Arizona governor was asked about the current speculation. "What's it like to be on the short list?" a reporter queried.
Napolitano smiled, looked down at her plate and replied, "Man. These are really good eggs."
Once the laughter had subsided, the secretary moved on to a question about the release of Guantanamo Bay detainees into the United States.
• The Washington Post reports on Michigan Gov. Jennifer Granholm's trip to the White House today. Granholm "is widely reported" to be a short-lister for the high court vacancy, and "White House press secretary Robert Gibbs left open the possibility that" President Obama "could interview her for the job" today.
• Massachusetts "Gov. Deval Patrick is heading to the White House to meet with President Obama amid speculation he is among those being considered for a Supreme Court post," the AP reports.
• The New York Times profiles Homeland Security secretary and short-lister Janet Napolitano.
• The National Law Journal reports on some names that "appear on the short lists of more than a dozen constitutional law and Supreme Court scholars."
• "While advocacy groups are pushing" Obama "to seek diversity in his Supreme Court pick, a survey out" Monday "suggests that Americans care much more about legal experience," the Boston Globe reports.
• As Obama "prepares to nominate his first Supreme Court justice, the White House is doubtless considering not only whom to select but how best to introduce the nominee to the public," CQ's Legal Beat reports.
• "Since announcing his plan to retire, Justice David Souter has gotten, fairly or not, some mediocre reviews for his opinion-writing and for leaving few memorable quotations behind," the Blog of Legal Times reports. "Some colorful language in Souter's dissent in" Monday's "decision in Ashcroft v. Iqbal may counter those critiques."
Commentary after the jump
The Judicial Confirmation Network has launched three new online ads and a Web site targeting three of President Obama's reported Supreme Court short-listers: appellate judges Diane Wood and Sonia Sotomayor and Solicitor General Elena Kagan.
The videos -- one for each potential nominee -- offer a glimpse into what conservatives could use as ammo if one of these three is the president's first high court pick. The Web site www.obamasfrontrunners.com, which launched today, asks visitors to vote for "which frontrunner is the worst liberal judicial activist," a common theme in criticism from the right.
The ads are not actually running on TV or radio; they are primarily serving to drive traffic to the organization's Web site, according to a group spokesperson.
Senate Minority Leader Mitch McConnell said that while it is "premature" to predict what will happen with President Obama's Supreme Court nominee, it's also too early to close the door on the possibility of a Republican-led filibuster. "Under the rules of the Senate, all things are possible," the Kentucky Republican said on "Fox News Sunday."
Subscribers to CongressDaily can read the entire story here.
When will President Obama pick his Supreme Court nominee?
Administration officials recently said that Obama will make his choice before he leaves for Egypt, Germany and France the first week of June. But some in the media have speculated that it could be before Memorial Day, weighing the comments of lawmakers who have talked with Obama and others in the vetting process. Aboard Air Force One on Thursday, press secretary Robert Gibbs dodged reporters' inquiries, saying the goal is to have a nominee go through the process before the August recess so they can "start work with the Supreme Court on the first Monday in October."
NationalJournal.com sought out several Supreme Court observers from a variety of fields for their take on when Obama will announce his pick. What's the consensus? That the president will make his choice when he's good and ready. Some say it could be this week, while others say next week based on the White House's rough timeline.
Below are predictions from: NBC Supreme Court reporter Pete Williams; Slate senior editor Dahlia Lithwick; lawyer Howard Bashman of the blog How Appealing; University of Santa Clara School of Law professor Bradley Joondeph; George Washington University Law School professor and Volokh Conspiracy blogger Orin Kerr; Washington lawyer Adam White; University of Richmond School of Law professor Carl Tobias, and Federalist Society Executive Vice President Leonard Leo. In order to ensure honest and frank speculation, contributors were allowed to submit their thoughts without using their names.
Contributors' predictions after the jump.
• "A seasoned Democratic political operative," Stephanie Cutter, "will guide President Barack Obama's eventual Supreme Court nominee on Capitol Hill, where the Senate's top Republican on Sunday refused to rule out a filibuster," the Washington Post reports.
• "Cutter will reprise the key behind-the-scenes role that Republican operative Steve Schmidt played for the Bush administration on the successful nominations of Chief Justice John Roberts and Justice Samuel Alito," CNN.com reports.
• "What will be the Achilles' heel... for the next nominee? That question might normally wait for the nominee to actually be named. But in the accelerated, intense glare of bloggers and bloviators," Obama's "presumed short-listers have already been picked over and subjected to extended criticism," the National Law Journal reports.
• "Republicans are going on offense to tarnish potential Supreme Court justice hopefuls, attempting to spark an early fight over" Obama's "first nomination to the high court," the Washington Times reports.
• The New York Times reports on how conservative groups plan to attack a number of Obama's potential nominees.
• "Several Republicans acknowledge that it is unlikely they will be able to derail the nomination absent some startling revelation about the candidate," the Times reports.
• "The top Republican on the Senate Judiciary Committee says his party should have been more forceful in evaluating the last two Democratic nominees for the Supreme Court," Legal Times' BLT blog reported on Friday.
Commentary
• "Obama is about to make one of the most important appointments any president can make. For picking a justice for the Supreme Court will have more ramifications for the republic than any cabinet secretary or ambassador," H.D.S. Greenway contends.
Updated at 10:03 p.m. on May 17.
Short-lister Diane Wood is attending the annual meeting of the 7th Circuit Bar Association and 7th Circuit Judicial Conference at the Westin Hotel in Indianapolis on Sunday. Meanwhile, President Obama will be attending two Democratic fundraisers at the Westin the same day. Coincidence?
Yes, a White House official said Friday afternoon: "The visit has nothing to do with the selection process."
The White House has included Wood, currently an appellate judge for the 7th Circuit, on its short list of candidates to replace Justice David Souter. National Journal's Stuart Taylor Jr. ranks Wood third on his list.
Barack Obama first explained his "empathy" test for choosing justices in voting against the nomination of John Roberts to be chief justice in 2005:
What matters on the Supreme Court is those 5 percent of cases that are truly difficult... In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or... whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
Obama has repeatedly stressed the "empathy" criterion since then. Meanwhile, conservative senators and legal experts and some centrists have criticized it as a thinly veiled rationale for seeking justices who will bend the law to benefit favored classes of people. That, the critics stress, invites a cardinal violation of the judicial oath to do "equal justice to the poor and to the rich" -- and to all others -- not to mention the constitutional command to provide all persons "the equal protection of the laws."
Conservative Edward Whelan, head of the Ethics and Public Policy Center, recently wrote in National Review Online's Bench Memos that "Obama's own language shows that he is seeking judges who will favor particular classes of people" in "what he calls the 'truly difficult' cases but what one reasonably suspects are any cases of sufficient importance in which application of traditional legal analysis doesn't yield the result that Obama really wants."
Ruth Marcus rejected such criticisms in her May 6 Washington Post column as an "absurd caricature" of Obama's meaning. The president's point, Marcus argued, is that "all judges are guided to some extent, consciously or unknowingly, by their life experience" -- not that they should make legal rulings based on "the sympathy evoked by one party or the other."
Professor Orin Kerr of George Washington University Law School has posted a nuanced analysis on the Volokh Conspiracy blog that I find persuasive. "We need to recognize the important but usually overlooked differences in how different people understand the role of ambiguity in judicial decisionmaking," Kerr wrote. "Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment. I think those differences explain a lot about contemporary legal debates, including, I suspect, President Obama's view of the Supreme Court and the role of 'empathy.'"
As Kerr details, Obama comes close to suggesting that he wants his justices to side with the "the powerless" against "the powerful" in the large number of close cases that pit individuals against big corporations, employees against employers, criminal defendants against cops, and the like.
Indeed, Obama accused then-Judge Samuel Alito of doing the converse, in voting against his Supreme Court nomination in 2006. Obama said that Alito "consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights. If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state."
I see that Stuart Taylor ranks Leah Ward Sears fourth on his handicap list for the Souter seat. She's stepping down as chief justice of the Georgia state Supreme Court. (She'll practice law and be a fellow of the Institute for American Values, a pro-family think-tank.) The three women above her on Stuart's list are all pretty spectacular people. But I had occasion to meet Sears last November and came away thinking, "That woman is going to be on the Supreme Court." At any rate, when President Obama looks her over, he is going to see a very appealing combination of qualities.
• Pro-family progressivism. Sears describes herself, according to sources in Georgia, as a moderate progressive. In criminal cases, she leans pro-defendant but is no ACLUer. She joined the court's majority in voting to overturn Georgia's sodomy law, earning hostility from the social right. But she also joined a unanimous opinion upholding an initiative banning gay marriage.
And she has a pet cause dear to the heart of social conservatives: shoring up the family. I met Sears in November at a conference ("For Children's Sake: A Summit on Marriage and Family") she was hosting with the Institute for American Values. There's an egalitarian family-law movement on the left that wants to equalize all family structures. No way, she says -- as in this 2006 op-ed in the Washington Post. She combines support for marriage with an egalitarian message: "Marriage is in deep danger of becoming about class structure and privilege." She takes her pro-family message to the black community, too. Obama's gotta like that.
• Political chops. Besides drawing generally high marks for her performance on the state Supreme Court, which she joined in 1992, Sears is an elected judge. A lot of judicial elections are cakewalks for incumbents, but she faced a serious challenge in 2004 from Republicans determined to defeat her and thereby tip the court. She handily beat back charges of being an activist liberal. For a left-of-center African-American in a red state, that is nothing to sneeze at.
Since Sandra Day O'Connor's departure, there has not been anybody on the U.S. Supreme Court with a political background. In fact, all of the current justices are former U.S. appellate judges, and eight went to Yale or Harvard. B-o-o-o-o-ring. Obama presumably wants to deliver on his promise of change, and he also wants to build the Democrats' brand and broaden the party's appeal. Appointing yet another bureaucrat in a black robe would hardly serve either purpose. But Sears, like O'Connor before her, has the potential to cut a national figure and even, perhaps, become a beloved public icon. That would be great for the Democratic brand.
• She's a pistol. At the conference in November, she moderated my session -- a discussion/debate on gay marriage -- with intelligence and no-nonsense aplomb. She can command a room. She is not someone you forget meeting. And she has that Clintonesque ability to make you feel you've bonded with her. On meeting me, she gushed about an article I wrote. ("Caring for Your Introvert." She said she was something of a closet introvert herself.) After three minutes, she had me eating out of her hand.
Obama, I hope, is less of a pushover than I am. But I can pretty much guarantee that Sears will interview well. (Here's a sample.)
Add that she is young (53) and a fresh face despite more than 20 years of experience on the bench. And -- did I almost leave this out? -- she is an African-American female. Her appointment would make history.
The far left of the Democratic Party might squawk about her friendship with Clarence Thomas and her affiliation with the Institute for American Values (which some have characterized as anti-gay, though it's not). That, however, would only help Obama tout her nomination as post-partisan and trans-ideological. Put it all together, and you have a package that takes some beating.
Move her up to No. 1, Stuart.
Top News
• "Outside organizations on both the left and right increasingly view the fight over a controversial Justice Department nominee as a proxy battle for President Obama's first Supreme Court nomination," The Hill reports.
• The Tuscaloosa News reports on a conference call Sen. Jeff Sessions, R-Ala., conducted yesterday with four home-state newspapers to discuss his recent meeting with Obama on the SCOTUS nomination.
• "A striking part of the debate over" Obama's pick "is what's missing from the clamor: how the nomination will affect business," Business Week reports.
• "At least eight progressive groups, including the AFL-CIO, People for the American Way and the National Council of La Raza... met with administration officials [Wednesday] to discuss what they're looking for in a nominee," NationalJournal.com reports.
• According to a new Fox News poll, "Americans think judicial experience should be the most important factor in selecting the next Supreme Court justice, far outdistancing other qualities such as the nominee's race, gender, sexual preference, and issue positions," Fox reports.
• CQPolitics's Legal Beat narrows in on a specific finding from Fox's poll: "Nearly one in four Democrats thinks television personality Oprah Winfrey would make a good Supreme Court justice."
• How do presidents go about picking a Supreme Court nominee? AP offers a Q&A on the topic.
• "Georgia Chief Justice Leah Ward Sears' name has popped up on short lists of possible nominees to the U.S. Supreme Court. But her immediate plans are to join a law firm, teach a law school course and work for a think tank," the Atlanta Journal-Constitution reports.
• "Federal judges are rarely famous or widely celebrated. Yet during a brief period in 1995, Judge Sonia Sotomayor became revered, at least in those cities with major league baseball teams," the New York Times reports.
• C-Span2's "Book TV" is showing programs on Justice David Souter and former Justice Sandra Day O'Connor this weekend.
Top Commentary
• CNN columnist Ruben Navarrette Jr. claims Obama has "rebuffed" interest groups in his search for his SCOTUS nominee.
• "Unlike some proposed nominees who have little if any experience from which to assess their judicial philosophy," California Supreme Court Justice Carlos Moreno's "views are clear: he is a hard Left judicial activist," contends Heritage Foundation fellow Robert Alt in the National Review Online.
• "While the instinct in choosing a justice for the highest court in the land is to find the most qualified judge or legal scholar, there is a powerful case to be made that the court very much needs an experienced elected official among its ranks," remarks UC Berkeley professor Gordon Silverstein in The New Republic.
• In the National Review Online, President of the Ethics and Public Policy Center Ed Whelan looks at how Obama's first appellate judge nominee, David Hamilton, responded to questions from Republican senators.
• Politico solicits predictions from a handful of legal experts on who Obama will pick.
Updated at 9:28 a.m. on May 15.
President Obama met with Senate leaders on Wednesday to discuss the Supreme Court vacancy, but that wasn't the only place the administration was seeking counsel. At least eight progressive groups, including the AFL-CIO, People for the American Way and the National Council of La Raza, also met with administration officials to discuss what they're looking for in a nominee. The White House would not confirm which groups were in attendance, but NationalJournal.com has learned that the list included:
• AFL-CIO
• Alliance for Justice
• Asian American Justice Center
• National Association for the Advancement of Colored People
• National Council of La Raza
• National Partnership of Women and Families
• National Women's Law Center
• People for the American Way
According to a White House official, the administration plans to "meet with senators on both sides of the aisle and a diverse array of organizations not limited to the left or the right." But the staffer declined to comment on any specific plans to hold a similar meeting with right-leaning groups.
A spokesperson for CRC Public Relations, a firm representing groups such as Americans United for Life and the Judicial Confirmation Network, said she was unaware of any outreach so far from the administration. And Leonard Leo, executive vice president of the Federalist Society, said that his organization has not been contacted by the White House and that he was unaware Wednesday's meeting had taken place.
Top News
• "President Obama told senators at a White House meeting" Wednesday "that he would review names of potential Supreme Court nominees over the weekend, leading participants to believe an announcement could come within days, according to senior Senate aides who were briefed on the gathering," the Washington Post reports.
• "The six names confirmed as being under review by Obama include" Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano, U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood, and California Supreme Court Justice Carlos Moreno, AP reports.
• "White House officials said the list of potential nominees is longer than the six to eight names circulating in public," the Wall Street Journal reports. "An office has been set up in the Eisenhower Executive Office Building, next to the White House, with White House Counsel Greg Craig taking the lead and Cynthia Hogan, Vice President Joe Biden's counsel, heading the vetting process."
• The president is "demanding no leaks and high discipline in the search to replace" Justice David Souter, the New York Times reports.
• "James B. Comey Jr., the top Bush administration official who rebelled against plans for domestic eavesdropping, is being pushed by some White House officials for inclusion on the short list of candidates... Democratic sources said," Politico reports.
• During Kagan's "career in academia and in the Clinton White House, she has worked with nearly everyone who counts inside" Obama's "legal circle, including then-professor Obama at the University of Chicago Law School," the Los Angeles Times reports.
• "Why the emphasis on gender? After all, there are no Asians, Hispanics or Muslims, male or female, on the court. But the lack of women is widely perceived as the gap that most needs to be addressed," the Wall Street Journal reports.
• Jeff Sessions, R-Ala., ranking member on the Senate Judiciary Committee, "announced Wednesday that he'd filled senior positions on the committee with lawyers with nearly 40 years combined of Washington experience," Politico reports.
• "An aggressive fundraising group that targeted moderate GOP lawmakers earlier this year has issued a stern warning to Senate Republicans who might vote for" Obama's nominee, CongressDailyAM (subscription) reports.
Top Commentary after the jump
It's the calm before the Internet storm. Interest groups, influential bloggers and others are anxiously waiting to see who President Obama will pick as his first Supreme Court nominee after Justice David Souter announced his retirement May 1. Once the news is out, they will rally their online supporters and rake through the nominee's court decisions on controversial topics like gay marriage, abortion and affirmative action to speculate on how he or she will influence the high court for decades to come.
"Every chink in the armor, every flaw, gets magnified" on the Internet, said Tony Mauro, a reporter with the National Law Journal who has covered the Supreme Court for nearly 30 years. The Web makes what would otherwise be normal criticism or flaws seem "like deal breakers," he said.
In the last battle over a Supreme Court nominee, conservatives roundly criticized President Bush's choice of Harriet Miers and forced her to withdraw; liberals then attempted to filibuster Samuel Alito's nomination, charging that he was too far to the right. As the legal and political blogs have grown in influence since 2005, Mauro said, the mainstream media, in turn, has acknowledged their higher profile. It only seems natural that the process will be much more intense this time around, he said.
Indeed, the Web has woven itself into nearly every part of politics and policy since the 2008 presidential campaign.
"It really depends on who the nominee is," said Nan Aron, president of the left-leaning Alliance For Justice. "We'll have some idea once the announcement is made to really gauge how much public interest there will be in the nomination. But, having said that, this is the time -- when there's a Supreme Court opening -- to reach out to as many people across the country and educate them about the importance of judges and federal judges at all levels." AFJ sends out an e-mail to its online supporters at least once a week, Aron said, and the group will undoubtedly take to its Justice Watch and Nonprofit and Foundation Advocacy blogs once a nomination is announced.
Americans United For Life says it has already seen an overwhelming response from its online supporters in discussions anticipating a nominee. "We had to upgrade the back end of our computer operation because we've seen such an outpouring of interest being more active on these issues," said Charmaine Yoest, the anti-abortion group's president. Her organization echoes a common concern on the right that Obama will nominate a judicial activist who will trigger a "dramatic shift in public understanding of the role of the courts," Yoest said. "When you go down the path of accepting judicial activism as the norm, that dramatically increases the amount of power judges have."
Yoest said her group will be ready to go right out of the gate once a nominee is announced. She said its "robust" online advocacy program, Facebook community and new IT system will mean "better, faster and cheaper" communication with supporters. "We're ready whenever they bring it out," she said. "There won't be a huge delay."
Continue reading Online Rumble A Precursor To Offline Battle
Following a meeting today between President Obama and Senate leaders regarding the upcoming Supreme Court nomination, Judiciary Chairman Patrick Leahy, D-Vt., released a statement denouncing "some right-wing interest groups" that he says have "already begun a smoke and mirrors campaign against the president's nominee, whoever it may be."
"I trust that Republican senators, and all senators, will honor their constitutional obligation, and will elevate a nominee on his or her merits, not on the campaigns of any narrow-minded interest group," Leahy said. While the chairman didn't specifically call out any group, a committee spokesperson directed NationalJournal.com to a media report that focused primarily on the Judicial Confirmation Network.
Leahy's statement comes on the heels of a broader comment yesterday by White House press secretary Robert Gibbs about advocacy groups and the nomination process. "I don't think that the lobbying of interest groups will help," Gibbs said. "I think in many ways lobbying can -- and will -- be counterproductive."
In response to Leahy's statement, Judicial Confirmation Network executive director Gary Marx said that the senator "should be more concerned about Democratic senators who in the past have strongly heard our vision of the court following judicial restraint." He referred specifically to red state Democrats such as Ben Nelson, D-Neb., Mary Landrieu, D-La., and Kent Conrad, D-N.D., who voted to confirm John Roberts in 2005. These Democrats "have heard the arguments we've made before and have supported our view and the view of mainstream Americans that we need justices who follow judicial restraint, not judicial activism," Marx said. He added that Leahy voted in favor of Roberts as well.
Senate Majority Leader Harry Reid, D-Nev., refused today to agree to Republican demands for at least 60 days between the nomination of a Supreme Court justice and the opening of hearings in the Judiciary Committee. "No arbitrary deadlines," Reid said after a meeting with President Obama to discuss the nomination.
But Senate Judiciary Chairman Patrick Leahy, D-Vt., said he would work with Judiciary ranking member Jeff Sessions, R-Ala., to work out an acceptable timetable. "I'm not going to drag my feet in the Judiciary Committee but I'm also going to make sure that everybody -- Republicans and Democrats -- [has] a chance to ask good questions." Sessions and Senate Minority Leader Mitch McConnell, R-Ky., were also in the meeting. McConnell said it was a general discussion, with no specific names discussed.
A new Gallup poll suggests that Americans today are less concerned about President Obama nominating a female justice than they were in October and September 2005, in the heat of the nomination and confirmation battles of Harriet Miers and Samuel Alito.
In a survey conducted May 7-10, only 6 percent of respondents said it was "essential" that Obama select a woman judge, compared to the 14 percent who said so in the fall of 2005. Just over a quarter of those polled this time around said that it would be "a good idea, but not essential" for the president to nominate a woman (33 percent and 29 percent said so in October and September 2005, respectively). Furthermore, there's a 14 percent jump in the number of Americans indicating that "it doesn't matter" whether the nominee is female or not (50 percent in October 2005 to 64 percent today).
Americans clamoring for a Hispanic or black nominee are fewer in number than those calling for a woman. Despite pressure on Obama to appoint the nation's first Hispanic justice, just over 20 percent of respondents indicated it would be "a good idea, but not essential" to nominate a Hispanic (only 1 percent said essential), while nearly 70 percent said it doesn't matter. Several rumored nominees are Hispanic: Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit; Vanessa Ruiz of the D.C. Circuit Court of Appeals; Kim Wardlaw of the 9th Circuit; and Ruben Castillo of the U.S. District Court for the Northern District of Illinois.
Here's how Gallup illustrates the trend:
Wednesday, May 13, 2009 11:20 AM
(Credit: Chip Somodevilla/Getty Images)
Taking part in his first confirmation hearing as ranking member on the Judiciary Committee, Sen. Jeff Sessions on Tuesday gave an early preview of the tack he might take with a nominee to the Supreme Court.
The Alabama Republican grilled Judge Gerard Lynch, President Obama's nominee for the 2nd U.S. Circuit Court of Appeals, announcing at the start his concerns that Lynch would "harbor activist tendencies and legislate from the bench." Sessions went on to press Lynch on his handling of a child pornography case from seven years ago in which he planned to inform the jury about the minimum sentence the defendant would face if found guilty.
Sessions accused Lynch of inserting his personal feelings into the case with his proposed jury instructions, which were overturned after prosecutors filed an emergency stay. "This forced prosecutors to either choose appeal or buckle under," Sessions said. "On this particular question, you went beyond the normal role of a judge, wouldn't you agree?"
Lynch didn't agree, asserting that his decisions at the time were appropriate. He also emphasized that his colleagues on the bench and in government hold him in high esteem. "They would be unanimously of the view that I am a fair judge, I do not threaten prosecutors, I don't play games and tricks, I'm a straight-shooter, that I tell a prosecutor what I plan to do," Lynch said.
When asked by Sen. Charles Schumer, D-N.Y., about how he defines judicial restraint, Lynch's remarks seemed addressed to Sessions as well. "Judges are to decide only the issues that are before them, quite apart from the legislator," he said. He added that "Congress is not only a co-equal branch, but it's the branch that speaks for the people."
Top News
• "When President Obama talks about the traits he admires in a Supreme Court justice, he ticks the predictable boxes -- intellect, integrity, respect for the Constitution and the law. And sometimes he talks about Lilly Ledbetter and the quality he defines as empathy," the Washington Post reports.
• "Georgia Republicans Saxby Chambliss and Johnny Isakson both have nothing but nice things to say about Georgia Supreme Court Chief Justice Leah Ward Sears," CQ's Legal Beat reports. "But when it comes to Sears as a U.S. Supreme Court nominee to replace Justice David H. Souter... both men are reserving judgment."
• "The best way for" Obama "to engineer a Senate confirmation vote on his pick for the Supreme Court before the August recess would be to reveal his choice sooner rather than later," CQ's Legal Beat also reports.
• "Sen. Dianne Feinstein, an influential member of the Judiciary Committee, wants" Obama "to consider two Hispanic judges from California," Politico reports.
• "Sen. Jeff Sessions is settling in as the top Republican on the Senate Judiciary Committee, asking difficult questions" Tuesday "of two nominees at his first confirmation hearing in his new role," the the Legal Times blog reports.
• Gallup reports on its new polling that shows 64 percent of "Americans say it doesn't matter to them whether Obama appoints a woman, with slightly higher percentages saying the same about the appointment of a black or Hispanic."
• AP reports that rumored nominees Judges Diane Wood and Ann Claire Williams will be in the spotlight at a hearing today in Chicago over "alleged religious discrimination."
• The Chicago Sun-Times examines U.S. District Judge Ruben Castillo's chances of being nominated.
Commentary
• "It would be no stretch for Obama -- as it would have been no stretch for" President Bush -- to find a nominee who happens to be both fully qualified and in possession of two X chromosomes," Ruth Marcus maintains.
• Writing at CBSNews.com, Senate Judiciary Chairman Patrick Leahy, D-Vt., says he wants "a Justice who will make decisions based on the law and the Constitution. Politics and ideological agendas have no place on the nation's highest court, or anywhere in our federal judiciary."
• In the Washington Post, Sessions lays out the "tough, substantive questions" he wants senators to ask of Obama's nominee.
• "When selecting a Supreme Court nominee, White House officials essentially plot the prospects out on a graph," explains ABC News' Jan Crawford Greenburg. "On the x-axis, you measure how closely the nominee fits with what you want in a justice; on the y-axis, you measure how easily the nominee could be confirmed."
• Obama "doesn't need to pick Hillary Clinton for the Supreme Court, as some have suggested, but he probably does have to pick a woman -- and Hillary Clinton is part of the reason," Josh Gerstein says.
• Lawyer Shahid Buttar's story on HuffingtonPost.com "examines the timing and context of Souter's retirement, suggests criteria for his replacement, and identifies Stanford law professor Pamela Karlan and Michigan Governor Jennifer Granholm as the potential nominees most suited to this historical moment."
You may think that most civil rights groups would want President Obama to nominate a Supreme Court justice in the mold of Ruth Bader Ginsburg or Stephen Breyer. But the American Association of People with Disabilities isn't one of them.
The Supreme Court has narrowed the scope of the landmark 1990 Americans with Disabilities Act in several decisions, and both Ginsburg and Breyer joined in unanimous rulings on United States v. Georgia in 2006 and Toyota Motor Manufacturing v. Williams in 2002.
In an interview last week, Andrew Imparato, president and CEO of AAPD, said he disagreed with Obama's campaign-trail characterization of Ginsburg and Breyer as model justices. "My hope is that they can stretch beyond Ginsburg and Breyer and really try to get somebody who is more like a [William] Brennan or Thurgood Marshall, who can be a strong voice for civil rights across the board. Even if it's a lone dissenting voice, I think it's a really important role, and I don't feel like we have that right now on the court."
Imparato says the next court pick is a top priority for his organization, and AAPD will be pushing hard for a Supreme Court nominee who strongly supports disability rights.
President Obama will not begin interviewing possible Supreme Court nominees until next week at the earliest, according to the White House. So what's going on behind the scenes?
I don't know for sure, but I can guess: Apart from vetting the leading prospects to flush out any character flaws, ethical issues or tax problems of the kind that have plagued some Obama nominees, the White House is probably devoting lots of attention to ideological vetting.
The goal of this process, which reportedly started long before it was clear that there would be a Supreme Court vacancy to fill, is to forecast insofar as possible how each prospect might rule on the biggest issues likely to come before the court in the next few years.
Like any president, Obama would prefer a nominee likely to uphold his own personal convictions on such issues as presidential war powers, abortion, racial affirmative action, voting rights, gay rights, religion in public life, assisted suicide, campaign finance reform and use of a litigation as a tool of social reform. Indeed, as someone who taught constitutional law, Obama may care more than most presidents about how his nominee will handle the big issues.
Ideological vetting of judicial nominees is a tricky business. A quotation often ascribed to President Lincoln helps explain why. Lincoln wanted to appoint a chief justice who would uphold the Union's legal tender law, which required people to accept paper money as payment for private debts. "We cannot ask a man what he will do," Lincoln supposedly said, "and, if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known."
But these days, many Supreme Court aspirants take pains to avoid making their opinions known. That's one legacy of President Reagan's 1987 nomination of conservative judge Robert Bork. His record of outspoken attacks on major Supreme Court precedents made it easy for critics to claim that he would take a wrecking ball to a long list of constitutional rights, and ultimately to defeat him.
Top News
"President Obama plans to meet Wednesday with Senate leaders to discuss replacing retiring Supreme Court Justice David Souter," CongressDaily (subscription) reports. "Obama is to talk with Senate Majority Leader [Harry] Reid, Senate Minority Leader [Mitch] McConnell, Senate Judiciary Chairman Patrick Leahy and ranking member Jeff Sessions, White House officials said Monday."
Sessions, R-Ala., said "Republicans will begin looking into the shortlist of names" Obama "reportedly is considering and even could warn the White House confidentially if they think a nominee is unacceptable," the Washington Times reports.
"It appears the White House has locked in on two competing sets of nominees: those who have traditional judicial and academic backgrounds and another group that comes from what might be called the 'real world,'" the Los Angeles Times reports.
Souter's "departure from the Supreme Court gives the first African American president a historic opportunity to break another barrier by appointing the first Hispanic to the nation's highest court," the Washington Post reports.
Sens. Barbara Boxer, D-Calif., and Olympia Snowe, R-Maine, "on Monday urged" Obama "to name a woman to the seat," Roll Call (subscription) reports.
The New York Times profiles possible nominee Diane Wood, a federal appellate judge.
Commentary
In Politico, attorney Keenan Kmiec examines the term "judicial activism."
"It is now widely understood that presidents must value youth in their Supreme Court nominees. The reason lies in the combination of two factors: life tenure and the party system," law professor Richard Primus explains in The New Republic.
"It's in the administration's interest to get his replacement confirmed as soon as possible," The Hill remarks.
Following is my ranking of the top 10 possible nominees in order of my best guess about which of them have the highest chances of being chosen. This is a fairly arbitrary exercise, without much more scientific validity than, say, handicapping horse races. My method does have the virtue of being as good as anyone else's who lacks real inside information, which no journalist is likely to have at this stage.
This ranking is based on media reports, online chatter and surveying various experts. It reflects the assumptions that President Obama will almost certainly want to choose a woman; would like to choose a Hispanic, but only if no other candidate does markedly better than the best available Hispanic on the criteria that follow; wants someone liberal enough to be a political hit with Democrats and moderates but politically difficult for Republicans to oppose; wants a stellar intellect with great judgment and the ability to write rhetorically powerful and logically rigorous opinions, so as to go toe-to-toe with brainy conservatives such as Justice Scalia and Chief Justice Roberts; wants a nominee with whom he has personal rapport; and wants a nominee with views roughly similar to his own personal convictions.
Finding someone known to have the ideal mix of views will be difficult, perhaps impossible. Most of the prospects have not specified their views on all or even some of the biggest issues that will confront the court. And as a general rule, lawyers and judges who lean left on issues like abortion and campaign finance reform also tend to lean against the executive branch in cases involving presidential war powers -- which happen to be the cases most likely to affect the success or failure of Obama's presidency.
With those caveats, here are the top 10:
1. Elena Kagan
2. Janet Napolitano
3. Diane Wood
4. Leah Ward Sears
5. Sonia Sotomayor
6. Jennifer Granholm
7. Vanessa Ruiz
8. Valerie Jarrett
9. Pam Karlan
10. Merrick Garland
News reports have named all but Sears, Ruiz, Jarrett and Karlan as on the list now being vetted by the administration.
The White House confirmed Friday it won't announce a Supreme Court nominee to replace Justice David Souter this week. The administration also signaled that "presidential interviews with prospective candidates are not likely to begin this week," according to a Sunday Washington Post story.
So where does that leave us?
NationalJournal.com examined the timelines of all SCOTUS nominations and confirmations going back to the Reagan administration. In that span, the longest a president waited to fill an immediate or imminent vacancy was 87 days: After Justice Byron White announced his retirement in March 1993, it took President Clinton almost three months to nominate Ruth Bader Ginsburg that June. The shortest? No time at all. On June 17, 1986, President Reagan announced Chief Justice Warren Burger's retirement, William Rehnquist's elevation to chief justice and Antonin Scalia's nomination to fill the vacancy.
A speedy nomination is no guarantee of an easy confirmation. In 1987, Reagan was quick out of the gate to nominate Robert Bork to replace Justice Lewis Powell, taking only five days. That ended up being the longest that a Supreme Court seat went unfilled in this period -- Bork's defeat, the short-lived bid of Douglas Ginsburg and a long confirmation process for Anthony Kennedy added up to 222 days.
The average wait for a nomination, including those that went nowhere, is a little over three weeks. We're now upon the 11th day since Souter announced his retirement May 1. History suggests we have more chatter and rumors to wade through before the real debate can get going -- in the Senate's confirmation proceedings.
July 19, 2005 -- President George W. Bush announces the nomination of Roberts.
Sept. 3, 2005 -- Chief Justice William Rehnquist dies.
Sept. 5, 2005 -- Bush switches gears and nominates Roberts as chief justice.
Sept. 29, 2005 -- Senate confirms Roberts, 78-22.
18 days -- elapsed between O'Connor and Roberts announcements.
72 days -- elapsed between Bush nominating Roberts for O'Connor's spot and Roberts being confirmed to fill Rehnquist's spot.
24 days -- elapsed between Bush nominating Roberts for Rehnquist's spot and Roberts' confirmation.
For all the speculation surrounding President Obama's choice to replace Justice David Souter on the Supreme Court, there's been less attention paid to the judges he's already nominated to lower courts. In his first 100 days, Obama put up three federal court of appeals nominations. And, while the circuit courts lack the glamour of the Supremes, Obama's picks so far offer one of the few guides on how he wants to shape the court system.
David Hamilton, Obama's first judicial nominee, was nominated on March 17 to sit on the U.S. 7th Circuit Court of Appeals. Though he has faced criticism from conservative groups, his nomination has advanced steadily through the Senate so far. The other two, Gerard Lynch for the 2nd Circuit and Andre Davis for the 4th Circuit, were announced April 2, with far less outcry.
"The first nominee is always going to be subject to the greatest scrutiny," said Doug Kendall, president of the progressive Constitutional Accountability Center.
Obama's low-key approach so far is in keeping with his picks, whom legal experts describe using words such as "safe," "cautious," "careful" and "moderate."
"You would have to describe them as fairly cautious choices," Kendall said. "He has nominated three sitting federal judges who have a decade or more experience on the federal bench.... There won't be a huge fight over their confirmations."
Rest of the story after the jump
Continue reading Obama's Early Judicial Picks Reflect Caution
Updated on May 19.
The Ninth Justice is tracking all the names swirling around as possible Supreme Court nominees to replace retiring Justice David Souter. As this list grows, we will update the list in alphabetical order. Want to submit a possible nominee? E-mail Amy Harder at aharder@nationaljournal.com.
Anita Alvarez, Cook County State's Attorney
• Age: 52
• Education: Loyola University in Chicago, 1982; Chicago-Kent College of Law, 1986.
• Ethnicity: Hispanic
• Her Cook County biography can be found here.
Christine M. Arguello, U.S. District Court, District of Colorado
• Age: 53
• Education: University of Colorado, 1977; Harvard Law School, 1980
• Ethnicity: Hispanic
• Her court biography can be found here.
Ruben Castillo, United States District Court for the Northern District of Illinois
• Age: 54
• Education: Loyola University, Chicago, Ill., 1976; Northwestern University School of Law, 1979.
• Ethnicity: Hispanic
• His court biography can be found here.
Hillary Rodham Clinton, Secretary of State
• Age: 61
• Education: Wellesley College, 1969; Yale Law School, 1973.
• Ethnicity: white
• Her State Department biography can be found here and her National Journal profile here.
James B. Comey, former deputy attorney general in George W. Bush's administration
• Age: 48
• Education: College of William and Mary, B.S., 1982; University of Chicago Law School, J.D., 1985
• Ethnicity: white
• His biography at Lockheed Martin, where he is currently senior vice president and general counsel, can be found here.
Nora V. Demleitner, Dean of Hofstra University Law School
• Age: 42
• Education: Bates College, 1989; Yale Law School, 1992; Georgetown University Law Center, 1994
• Ethnicity: white
• Her Hofstra University Law School biography can be found here.
JoAnne A. Epps, Dean of Temple University Beasley School of Law
• Education: Trinity College; Yale Law School
• Ethnicity: African American
• Her Temple University biography can be found here.
Dana Fabe, Alaska Supreme Court Chief Justice
• Age: 58
• Education: Cornell University, B.A., 1973; Northeastern University School of Law, 1976.
• Ethnicity: white
Her court biography can be found here.
Continue reading The Long List: Justice Souter's Replacement
Richard Nixon was seen talking to portraits of past presidents at the depth of Watergate.
Other presidents have sensed the spirits of long-dead predecessors lurking in the corridors of the White House. But today, as President Obama ponders his first Supreme Court appointment, those portraits and ghosts might be trying to warn him to avoid their mistakes, lest he be haunted as they were by justices gone awry.
No presidential appointment is more important or has more lasting impact on the nation.
And no other appointment has caused more regret.
The examples of justices who surprise and disappoint their presidents are well known and likely to be cited often in coming days. But many people will draw the wrong lessons from the retelling and believe that history is filled with tales of justices who suddenly change their ideologies once they don the robes. That is not what has happened.
Subscribers can read the entire story here.
From National Journal's May 8 issue:
As liberal and conservative lobbyists exchange bitter salvos in anticipation of President Obama's choice to succeed Supreme Court Justice David Souter, Vice President Joe Biden must be experiencing deja vu.
Twenty-two years ago, then-Sen. Biden, D-Del., chairman of the Judiciary Committee, found himself in the national spotlight when President Reagan nominated Robert Bork to the Supreme Court. The battle over Bork was joined almost the minute he was nominated.
Liberal advocacy groups branded Bork a right-wing extremist far outside the mainstream. Conservatives countered that the Appellate Court judge and former solicitor general had superb credentials and was a powerful advocate for judicial restraint.
Subscribers to National Journal can read the full story here.
From May 8 issue of National Journal:
Many hope, and many others fear, that President Obama will choose a crusading liberal activist to energize the Supreme Court's progressive wing.
Such an appointee might push to expand racial preferences, abortion rights, and especially welfare rights for poor people; to strike down the law barring openly gay people from the military; to recognize gay marriage (which Obama has opposed); to end the death penalty and curtail gun rights (both of which he has supported); to free Guantanamo detainees unless they can be convicted of crimes (which would reject Obama's policy); and much more.
The preceding parentheticals suggest some of the reasons I'm cautiously betting that Obama will choose a moderate liberal who believes in judicial restraint. By this I mean deference to elected officials unless they violate clear constitutional commands or show gross irresponsibility. The lack of such restraint is what I mean by "judicial activism."
A restrained liberal justice might, for example, hope for legislative recognition of same-sex marriage (as do I) but decline to rewrite the Constitution to override the democratic process on the issue by judicial decree.
This is not to suggest that the president will pick a centrist, let alone a conservative. Filling moderately left-of-center Justice David Souter's seat with anyone seen as more centrist would be a stunning abandonment of Obama's campaign stance that would infuriate his liberal base.
Continue reading Taylor's column here.
Sen. Jeff Sessions, R-Ala., demonstrated to a clutch of reporters on Tuesday that after more than two decades, he can still recount in detail the sting of being a judicial nominee on the losing side of a fight. In 1986, Sessions failed to win the approval of the Senate Judiciary Committee when President Ronald Reagan nominated the young U.S. attorney from Mobile to become a federal judge. Pennsylvania Sen. Arlen Specter, then a Republican, voted against him, as did former Sen. Joe Biden, D-Del, who was then the ranking Democrat on the panel. Sessions' detractors complained at the time that the nominee had made a series of racially insensitive remarks, calling the NAACP and the American Civil Liberties Union "un-American," among other things. But bygones are bygones, Sessions said this week. "We are past that."
Now 62, and in his third term in the Senate, Sessions this week won the support of his GOP colleagues to become the ranking member of the Judiciary Committee after Specter announced he was switching parties. In a plot twist fiction writers could appreciate, Sessions will now lead conservatives' scrutiny of President Obama's nominee to succeed retiring Supreme Court Justice David Souter. Sessions agreed that his experience as a nominee will give him him empathy -- among the attributes Obama values and conservatives decry -- although he was quick to say he will object to any Supreme Court pick who would substitute bias or personal preferences for the rule of law. Edited excerpts from National Journal's Alexis Simendinger follow. Visit the archives page for more Insider Interviews.
Q: Do you believe the opposition by then-Sen. Barack Obama to nominees John Roberts and Samuel Alito to join the Supreme Court offer you and Republicans more leeway to oppose President Obama's nominee to succeed Justice Souter?
Sessions: It doesn't affect me much. But I think somebody could argue that he filibustered Alito -- somebody with fabulous qualities like Judge Alito -- and somebody could say, "How can you complain about me filibustering?"
But I'm hopeful we'll avoid the filibuster approach. I hope the president will nominate somebody who will garner broad support. He should be able to. The defining issue tends to be for me whether the judge would subordinate his personal, political, social, moral views to the law. And if a judge won't do that, then I have serious problems with that judge.
Q: In other words, not an activist judge?
Sessions: That's how I define an activist judge -- one who allows his personal views to justify twisting the law to make it say what they want it to say. And when you start doing that, you undermine the awesome respect the law has and the willingness of millions of Americans to accept rulings even if they disagree with them. If they find that the emperor has no clothes, and that this is a political decision and not a legal decision, then the whole agenda is threatened -- the whole heritage of law.
The complete Q&A is after the jump.
Continue reading Sessions Says He's Looking For Judicial Restraint
Senate Majority Leader Harry Reid, D-Nev., said today he does not expect Republicans to filibuster President Obama's nominee to replace retiring Supreme Court Justice David Souter.
"There aren't enough Republicans to do that," Reid said during an appearance on NBC's "Today" show. "I would also say this: The Republicans, when they put up this big battle on the nuclear option, one of their reasons for doing this is that they didn't believe that judges should be filibustered. So I don't know how they could do that intellectually, now come back and try to filibuster a judge." Reid was referring to threats by Senate Republicans when they were in the majority to declare that filibusters on judicial and other nominations were unconstitutional.
In a recent blog post, the Hotline's Jennifer Skalka recalls her experience interviewing (and receiving a subsequent letter from) Justice David Souter while working on a profile of prominent New Hampshire lawyer, Dudley Orr, in December 2002.
Here's an excerpt from her Hotline On Call post:
I requested an interview with the notoriously press averse Souter via his SCOTUS office. Expecting full well that he wouldn't want to talk, I continued with my reporting. Orr, I discovered, was a character. He wore three piece suits routinely, and sports jackets as a more casual look on weekends. He played gin and cribbage regularly with his wife; the loser would deposit $20 in each of the grandchildren's bank accounts. He was beloved across political lines.
And then came the call. I was told Souter would phone me at a particular time on Christmas Eve. It snowed the day of our planned interview. As I drove up Mountain Road en route to the Monitor, leaving enough time to journey carefully through the weather, I marveled that a year out of graduate school, I would have the opportunity to interview a sitting SCOTUS justice. It was -- and is -- one of the miracles of the Monitor. Access to wonderful people and politicians and newsmakers -- even for a neophyte journalist.
Subscribers can read the entire post, including Souter's letter, here.
Editor's Note: I have been persuaded that I was unfair to Judge Sonia Sotomayor, who is widely seen as a possible Supreme Court nominee, in this article posted on May 1. I regret calling her "exceptionally controversial," which was an overstatement. I also regret citing anonymous claims that she has been "masquerading as a moderate," which I do not know to be true. -- Stuart Taylor Jr., May 5
Random thoughts on Justice David Souter, his expected retirement and next steps for President Obama:
• Souter was a stealth nominee when he was named by President George H. W. Bush in 1990 -- many liberals at the time denounced him as a closet right-winger, and he was privately touted as such by then-White House Chief of Staff John Sununu. Souter's fulsome praise of Justice William Brennan (whom he succeeded) at his confirmation hearing suggested that he might lean more left, and he has been consistently left of center since he got to the court.
He moved in his first few years from moderate-liberal to liberal -- most notably in joining the Sandra Day O'Connor-Anthony Kennedy-Souter swing opinion that reaffirmed (but slightly narrowed) Roe v. Wade in the big 1992 decision in Planned Parenthood v. Casey. Souter became a reliable member of the liberal bloc on every major issue and most, if not all, minor issues. The major issues -- abortion, race and affirmative action, presidential war powers versus civil liberties, gay rights, church-state issues and campaign finance. But unlike Harry Blackmun, and to some extent Warren Burger and John Paul Stevens, this is not a guy who started out conservative or centrist and then "evolved" -- he was never conservative.
President Obama confirmed today that Supreme Court Justice David Souter will retire and said he hopes to have a replacement confirmed by the time the court begins its new session on the first Monday of October.
Obama interrupted a briefing by Press Secretary Robert Gibbs to make the announcement.
Senate Judiciary Chairman Patrick Leahy praised Souter for having "served the nation with distinction for nearly two decades on the Supreme Court. I have admired his commitment to justice, his admiration for the law, and his understanding of the impact of the Court's decisions on the daily lives of ordinary Americans."
Subscribers can read the full story here .
