Judge Sonia Sotomayor has not defended her most widely criticized decision -- the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn. -- as a just or fair result.
That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor's decision.
And as I've explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor's three-judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications -- no matter how job-related and racially neutral -- on which blacks or Hispanics did badly.
Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.
Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.
Continue reading Did Precedent Make Sotomayor Rule Against Ricci?.
From National Journal's July 18 issue:
Soon-to-be-Justice Sonia Sotomayor has called herself "a product of affirmative action" who was "accepted rather readily into Princeton" despite test scores that were lower than those of more privileged classmates due to "cultural biases built into testing."
Harvard professor Henry Louis Gates Jr., capitalizing on the avalanche of publicity he touched off by attributing to racism his July 16 arrest at his home by a white police officer, has declared that America is "racist" and "classist" and that "there haven't been fundamental structural changes in America.... The only black people who truly live in a post-racial world in America all live in a very nice house on 1600 Pennsylvania Avenue."
What Sotomayor and Gates share is a habit of drawing dubious lessons about race from their own experiences.
Sotomayor was right to praise the kind of "affirmative action" that may have helped her get into Princeton, and her admission was resoundingly vindicated by her stellar academic performance there. But she has been quite wrong to imply that what affirmative action has become -- a euphemism for giving blacks and Hispanics large preferences based solely on race over better-qualified and often less affluent whites and Asians -- is necessary to open opportunities for talented minorities today.
The young Sotomayor, raised in modest circumstances in the Bronx, N.Y., had shown special promise and drive by becoming valedictorian at a competitive Catholic school. And, by her own account, her test scores were not terribly "far off the mark" set by more privileged applicants from better schools.
In short, while Princeton's admissions office no doubt considered her ethnicity, she was an ideal candidate for the kind of class-based affirmative action that crusading liberal Justice William O. Douglas -- who saw race-based preferences as unconstitutional -- advocated for extraordinarily promising students of all races in his 1974 dissent in DeFunis v. Odegaard.
Continue reading the column here.
"Many conservatives oppose Judge [Sonia] Sotomayor's nomination because she does not appear to support originalism.... But when it comes to the race cases before the Supreme Court, too many conservatives abandon both originalism and judicial restraint [by claiming] that the Constitution's 14th Amendment mandated a policy of strict colorblindness by state and local governments.... The historical evidence that it did is weak.... To seek to invalidate laws without a strong argument that the Constitution requires doing so is precisely what conservatives usually mean by 'judicial activism.'"
These words -- which echo criticism of the Supreme Court's conservatives by liberal scholars and Democratic senators -- packed an extra wallop because they came from a leading conservative commentator, Ramesh Ponnuru of National Review.
His June 23 New York Times op-ed clashed with efforts by other conservatives to depict Sotomayor as a liberal activist and themselves as the champions of judicial restraint, provoking a lively exchange among legal experts on National Review Online.
Some reproached Ponnuru for what Roger Clegg of the Center for Equal Opportunity called "an ill-timed, ill-argued" piece implying that white people do not have the same rights as blacks to the equal protection of the laws. Wendy Long of the conservative Judicial Confirmation Network wondered whether Ponnuru had been "taken hostage by some NYT editorial page terrorists who waterboarded him until he agreed to sign that op-ed piece."
Other conservatives, however, concurred in whole or in part with Ponnuru's view that racial preferences are not barred by the Constitution even though "unwise and immoral" as a policy matter. And Ponnuru was far from the first prominent conservative to echo liberal claims that the conservative justices are guilty of judicial activism.
Continue reading Sotomayor Sparks Debate Among Conservatives Over Originalism.
The bumper-sticker liberal view of constitutional interpretation might begin with President Obama's assertions that "the Constitution... is not a static but rather a living document and must be read in the context of an ever-changing world," and that "we need somebody who's got the heart -- the empathy -- to recognize what it's like to be a young teenage mom" or "to be poor or African-American or gay or disabled or old."
The bumper-sticker conservative view might begin with the standard denunciations of "legislating from the bench" and "judicial activism." Other formulations include: "Judges are like umpires. Umpires don't make the rules; they apply them." "As a judge, I don't make law.... I apply the law to facts." "Judges... don't determine the law. Congress makes the laws. The job of a judge is to apply the law."
It's notable that while the "umpire" analogy came from Bush nominee John Roberts in 2005, the subsequent two conservative-sounding quotes came from Obama nominee Sonia Sotomayor.
Sotomayor worked very hard last week not to sound like a liberal. So hard as to suggest that she and her White House handlers understand that the living-Constitution-plus-empathy approach is seen by many voters -- fairly or unfairly -- as a facade for judges rewriting the law to favor liberal constituencies and causes.
But the simplistic picture painted by many conservatives -- and now by Sotomayor -- of judging as a mechanical exercise with no place for moral and political values is unreal to anyone who understands the subjective nature of the choices that judges, and especially justices, must often make.
The Supreme Court would not split 5-4 on so many of the hardest questions if the answers could be discerned simply by applying the Constitution and other laws to the facts. The legal materials to be interpreted are sometimes so ambiguous or conflicting, and their meaning so debatable, that judges have no option but to "make law" by choosing among two or more equally plausible interpretations. And individual judges' personal values and views of the world unavoidably help shape such choices.
Continue reading Bumper-Sticker Judicial Philosophy.
A Nexis search finds more than 50 mentions of "kabuki"-- a form of Japanese theater that has become journalese for empty, stylized ritual -- in news stories about the Senate Judiciary Committee's hearings on Judge Sonia Sotomayor.
The most common explanation for why judicial confirmation hearings have become such empty rituals is that the Senate's rejection of Judge Robert Bork in 1987 -- after the conservative Reagan nominee had answered dozens of questions about his "originalist" judicial philosophy -- proved that candor could be fatal for any nominee.
Since the Bork nomination, "the goal for judicial nominees has been to skate through by saying as little as possible as politely as possible," the New York Times observed in an editorial Tuesday.
There is much truth in this. But Bork's fate did not prove that nominees have to hide or misrepresent their judicial philosophies in order to get confirmed.
For one thing, Bork probably would have been defeated even if he had ducked the questions about his judicial philosophy, as subsequent nominees have done.
For another, Sotomayor very probably would have been confirmed by a wide margin -- albeit with a bit more difficulty -- even if she had been far more forthcoming about her views of the law, and less determined to deny the apparent meaning of her controversial past statements.
Continue reading The Lessons Of Bork.
The media consensus about the recently completed hearings on Judge Sonia Sotomayor's nomination seems to be that it was a waste of everybody's time, with Republican senators asking "gotcha" questions and the nominee sticking to cautious bromides of the I-just-apply-the-law variety.
"While her confirmation hearings drew plenty of coverage last week," wrote Howard Kurtz in the Washington Post, "the level of media excitement hardly matched that surrounding Mark Sanford's Argentine affair, Sarah Palin's Alaskan exit or Michael Jackson's untimely departure."
True enough. But it's also true that most of the media missed a major opportunity to use the hearings as a peg for background pieces and news analyses explaining to readers and listeners some of the big issues on which so little light was shed by the senators and the nominee.
The media know how to do that sort of thing in other contexts. Consider the way in which the New York Times and others have used the 40th anniversary of the first moon landing for fascinating explorations of the past, present and future of space travel, including everything from the lunar lander's technology to the astronauts' subsequent lives.
But how much insight did the media offer on the complex but important issues that came up during the Sotomayor hearing? Issues such as these:
Continue reading Big Issues That Got Short Shrift.
Perhaps the most remarkable exchange during the Senate Judiciary Committee's hearing came on Tuesday, when President Obama's nominee flatly repudiated his judicial philosophy.
This is all the more striking because it's a good bet that the Obama team knew it was coming. White House lawyers spent days prepping Judge Sonia Sotomayor for the hearings, and it was quite predictable that she would be asked about Obama's "empathy" criterion for choosing nominees.
Indeed, I wonder whether the Obama team itself may even have suggested to the nominee that rejecting the Obama philosophy -- as well as disavowing the apparent meaning of her years of "wise Latina woman" speeches -- would be the best way out of a tight spot, for reasons explained below.
Sotomayor's three days of "I just apply law to facts" testimony may evidence a tacit recognition by smart liberals such as Obama and Sotomayor that the American public is either too unsophisticated or too sensible -- take your pick -- to buy the undiluted liberal judicial philosophy that pervades her speeches, and his.
The predictable question came from Sen. Jon Kyl, R-Ariz., who asked whether Judge Sotomayor agreed with Obama's repeated assertions that "the critical ingredient in [hard] cases is supplied by what is in the judge's heart," including empathy for the powerless.
Sotomayor's stunning response: "No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is, judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law."
Wow. Has anyone ever before delivered such a sharp rebuff to the president who nominated her? And on national television, no less?
(White House press secretary Robert Gibbs later told reporters that "the president is not troubled" by his nominee's testimony.)
And has any Democratic nominee ever rejected so clearly the "living Constitution" vision championed by the liberal legal establishment -- while appearing to embrace the conservative dogma that judges must be strictly bound by the Constitution's text?
"Do you believe the Constitution is a living, breathing, evolving document?" asked Sen. Lindsey Graham, R-S.C.
Sotomayor's response: "The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendment. ... It doesn't live other than to be timeless by the expression of what it says. What changes is society."
This, and similar answers, caused understandable lamentation in the liberal legal establishment, some of it quoted by Jan Crawford Greenburg of ABC News in her perceptive "Legalities" blog.
What's going on here?
Continue reading Repudiating Obama's Judicial Philosophy.
From National Journal's July 18 issue:
As one who had hoped for a moderately liberal, intellectually honest nominee and feared the possibility of an unprincipled left-liberal ideologue steeped in identity politics, I am having trouble figuring out Judge Sonia Sotomayor.
Sen. Lindsey Graham, R-S.C., captured my own puzzlement when he told Sotomayor on Tuesday that although her 17-year judicial record struck him as "left-of-center but within the mainstream, you have these speeches that just blow me away.... Who are we getting here?"
Graham was talking mainly about a succession of at least five very similar speeches between 1994 and 2003 in which Sotomayor appeared to glorify ethnic and gender identity repeatedly at the expense of the judicial obligation to be impartial and suggested that "a wise Latina woman" would be a better judge than "a white male."
In response to questions such as Graham's, Sotomayor and her supporters have touted her judicial decisions as proof that she has been a solid, impartial judge.
They have a point. Sotomayor's more than 3,000 mostly unremarkable rulings have not been ultra-liberal, have not displayed any broad pattern of bias in race or gender cases, and have closely followed precedent. Ordinarily, a judge's record on the bench is the best guide to what she would do on the Supreme Court. She has also lived an admirable life.
But how persuasive were Sotomayor's efforts to explain away those jarring speeches? I juxtapose excerpts from a typical speech -- in October 2001, to an audience of Hispanic activists and others at the University of California (Berkeley) -- with portions of her testimony on Tuesday and Wednesday.
Continue reading the column here.
For more than three hours on Monday, at the outset of the Sonia Sotomayor confirmation hearing, the Senate Judiciary Committee's 19 members talked. And they talked. There were no surprises, and many a reporter found it to be a boring prelude to the questioning of the nominee on Tuesday and Wednesday.
But a few of us Supreme Court geeks found it all pretty interesting, if undramatic. I quote below, and add brief comments about, some of the more notable remarks by 10 of the 19 committee members -- first five Democrats, then five Republicans.
Sen. Patrick Leahy, D-Vt.: "Those who break barriers often face the added burden of overcoming prejudice, and it's been true in the Supreme Court. Thurgood Marshall graduated first in his law school class. He was the lead counsel for the NAACP Legal Defense Fund.... He won a remarkable 29 out of 32 cases before the Supreme Court. But despite all of these qualifications and achievements, when he was before the Senate for his confirmation, he was asked questions designed to embarrass him, questions such as 'Are you prejudiced against the white people of the South?'... The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism.... Let no one demean this extraordinary woman."
Comment: These allusions to the "prejudice" that Marshall and Brandeis encountered were a stretch. There is no public evidence that Sotomayor has ever been subjected to serious prejudice or discrimination. Far from demeaning her, Republican senators have celebrated her inspiring personal story and the idea of a Hispanic woman sitting on the Supreme Court. And it is Sotomayor, not her critics, who has engaged in stereotyping by suggesting repeatedly that a "wise Latina woman" would make better decisions than a white male.
Sen. Dianne Feinstein, D-Calif.: "Several past nominees have been asked about the Casey decision, where the court held that the government cannot restrict access to abortions that are medically necessary to preserve a woman's health. Some nominees responded by assuring that Roe and Casey were precedents of the court, entitled to great respect.... But once on the court, the same nominees voted to overturn the key holding in Casey, that laws restricting a woman's medical care must contain an exception to protect her health. Their decision did not comport with the answers they gave here.... As a matter of fact, in just two years, these same nominees have either disregarded or overturned precedent in at least eight other cases."
Comment: Feinstein initiated what became a major Democratic theme: attacking Chief Justice John Roberts, Justice Samuel Alito, and the court's other conservatives. The theory seems to be that the best defense of Sotomayor includes a good offense against the conservatives. But in fairness to Roberts and Alito, both took care to avoid giving in to demands by Democratic senators that they vow never to overturn Planned Parenthood v. Casey. And liberal justices are no less prone than conservatives to overturning precedents they don't like.
Continue reading Senatorial Speeches: Points Of Contention.
As night follows day, the spectacle unfolding as 19 senators pose their questions to Judge Sonia Sotomayor will include a succession of demands for candor about her views -- especially from Republicans -- which the nominee will meet with ducking, dodging and evasion.
Sotomayor will steadfastly claim, as did all of the current justices, that it would be improper to disclose her views on issues that might come before her, except at a high level of generality. And she will be right.
I have not always held this view, and I hold it now even though there are very strong reasons for demanding candor from a nominee who is effectively running for a lifetime appointment that will give her far more power than any member of Congress, and with no accountability to voters, ever.
Once confirmed, as seems almost assured, Sotomayor will likely spend three or more decades setting national policy (when in the majority) on issues including racial quotas and preferences; discrimination law; war powers of the president, Congress and the judiciary; abortion; church-state relations; gay rights; campaign finance; environmental law; property rights; gun control; whether judges should change the meaning of the U.S. Constitution to conform to foreign law; the death penalty; and other criminal law issues.
It's unimaginable that any serious candidate for Congress or the presidency could refuse to tell us what he or she thinks about any -- let alone all -- of these issues.
So why should there be an exemption for a nominee who seeks to sit on the only body with power to strike down presidential and congressional acts?
Then-Sen. Joe Biden's frustration was understandable when he said to John Roberts in 2005, "We are rolling the dice with you, judge.... You've told me nothing... as if the public doesn't have a right to know what you think about fundamental issues facing them."
Of course, there are obviously strong political incentives for nominees to refuse to disclose their views. Washington is bursting with interest groups that have impassioned views on all sides of every issue. In such a world, every candid answer would offend this or that group. And dozens of candid answers strung together would create formidable coalitions of opponents.
Continue reading Why Sotomayor Should Not Say What She Thinks.
Updated at 6:30 p.m.
For all the publicity about the Supreme Court's 5-4 reversal of Judge Sonia Sotomayor's decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.
That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.
The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.
And if the Ricci case -- which ended up producing one of the Supreme Court's most important race decisions in many years -- had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.
The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.
Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice.
In any event, any 2nd Circuit judge who had chanced to find and read the panel's summary order in Ricci would have found only the vaguest indication what the case was about.
But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters' lawyer, that she had expected "'a reasoned legal opinion,' instead of an unpublished summary order, 'on what I saw as the most significant race case to come before the Circuit Court in 20 years.'"
Continue reading How Ricci Almost Disappeared.
A perennial feature of judicial confirmation hearings is watching Senate Democrats and Republicans alike invert their approaches to various issues depending on the party of the nominating president. Look for some of that during next week's Judiciary Committee hearings on Judge Sonia Sotomayor.
Sotomayor is expected to emulate the last seven nominees to face confirmation hearings -- five picked by Republican presidents and two by Democrats -- by refusing to disclose her specific views on issues likely to come before the court. And she should refuse, for reasons that I will discuss in a future post.
But will the Democrats who pronounced themselves mightily frustrated by the unresponsive ducking and dodging of John Roberts and Samuel Alito in 2005 and 2006 be similarly annoyed when Sotomayor ducks and dodges next week? Don't bet on it.
And will the Republicans who lauded the content-free testimony of Roberts and Alito take a similarly benign view when Sotomayor parries their efforts to pin down her views? Don't bet on that, either.
Consider, for example, the positions of Sen. Dianne Feinstein, D-Calif., and then-Sen. Joe Biden, D-Del., in 2005 on the need for nominees to be forthright. In explaining her opposition to Roberts to reporters, Feinstein focused on his deft evasions of questions about privacy, women's rights and other issues. "So he really lost [your vote] in the hearings?" a reporter asked. "In my view, he did," Feinstein replied.
Similarly, after hearing Roberts claim that his conservative policy memos as a Reagan Justice Department staffer did not necessarily reflect his personal views, Biden complained to National Journal: "He didn't answer the questions. I had to bet either my hopes or my fears. I thought, quite frankly, he was somewhat disingenuous."
It seems most unlikely that Feinstein or Biden will take similar offense when Sotomayor does more or less what Roberts did.
Across the aisle, Republicans including Sens. Sam Brownback of Kansas and Lindsey Graham of South Carolina took a benign view of Roberts' refusal to show his cards. Brownback rhapsodized about "sitting there and listening to a brilliant constitutional scholar discuss the Constitution"; Graham asserted that Roberts "will be a justice for the ages."
Next week, I predict, Judiciary Committee Republicans will be complaining that Sotomayor didn't answer their questions. And most or all Democrats will be delighted with non-answers and full of praise for the nominee's brilliance.
The Supreme Court's predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.
After all, it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee's ruling to the contrary.
What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.
This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed... opinion" by U.S. District Judge Janet Arterton.
Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
Continue reading Justices Reject Sotomayor Position 9-0 -- But Bigger Battles Loom.
The Supreme Court's decision on Thursday faulting school officials' intrusive semi-strip search of a 13-year-old Arizona girl suspected of hiding drugs that were forbidden in school, but not very dangerous, has generated spirited commentaries. See, for example, Dahlia Lithwick's in Slate, suggesting that Justices Ruth Bader Ginsburg and John Paul Stevens "turned this ship around, I suspect, with the power of persuasion and a public-shaming chaser."
I dwell here on fairly obscure aspects of the case. They indicate that school officials will need to buy lots of insurance if the views of Ginsburg and Stevens on the question of liability ever command a majority. They also illustrate the limitations of President Obama's "empathy" standard for choosing judges, and suggest a possible question for his Supreme Court nominee.
First, the basics: Acting on a tip from another student that Savana Redding might be hiding prescription-strength ibuprofen pills (and over-the-counter naproxen), school officials told her to strip in front of two women down to her bra and underpants and pull them out, thus exposing her breasts and pelvic area to some extent. No drugs were found. Savana's mother sued the officials and the school district for invading her privacy and humiliating her in violation of her Fourth Amendment rights.
In what may turn out to be retiring Justice David Souter's last majority opinion, all of his colleagues except Clarence Thomas agreed that this "strip search" (though not an earlier search of her backpack and jacket pockets) -- looking for drugs that the officials had no reason to suspect would be very dangerous -- was unconstitutional. But Souter and six other justices (including Thomas) also agreed that the assistant principal who ordered the search enjoyed "qualified immunity" from liability to pay damages. The reason was that the illegality of this kind of search had not been "clearly established law" at the time. On this point, Souter stressed that "numerous... well-reasoned" opinions and dissents by federal appellate judges had held or suggested that similar searches of students were constitutional under a key 1985 Supreme Court precedent.
Souter's opinion in Safford Unified School District v. Redding seems reasonable to me. Not so the partial dissents by Justices Stevens and Ginsburg.
Continue reading Strip Searching Students -- And Empathy For Whom?.
Updated at 5:44 p.m. on June 22.
Consider two judicial nominees, both of whom have won bipartisan support and praise for their distinguished service on lower courts.
Nominee No. 1 had been a not-very-active member of his grandfather's all-male fishing club in Western Pennsylvania. It had a ramshackle old building with bunk beds, wooden tables and benches like a boys' summer camp. He resigned two years before his nomination.
Nominee No. 2 was a member of a single-sex club described on its Web site as "a constellation of influential... decision makers in the profit, non-profit and social sectors; who build long term mutually beneficial relationships." That club has periodic meetings in New York and other cities and an annual retreat in Latin America, including cocktail parties with U.S. diplomats and host-country officials and panel discussions on public policy and business affairs.
Nominee No. 1 came under attack from the National Organization for Women and Senate Democrats. Patrick Leahy of Vermont, now chairman of the Judiciary Committee, fumed that the fishing club "invidiously discriminates against women," and thus that the nominee had violated the Canon 2 of the official Code of Conduct for U.S. Judges.
But hardly anyone is very concerned about Nominee No. 2's club, excepting a few conservatives and my friend Michael Kinsley, the liberal columnist, for reasons of his own.
Nominee No. 2 is, of course, Judge Sonia Sotomayor. Her all-woman club was the Belizean Grove, which touts itself as a women's alternative to "the power of the Bohemian Grove, a 130-year-old, elite old boys' network of former Presidents, businessmen, military, musicians, academics, and non-profit leaders." She resigned on June 19 to quiet the conservative fuss, while denying that the Belizean Grove excluded males or practiced "invidious discrimination."
Nominee No. 1 was Judge D. Brooks Smith, a Reagan-appointed federal district judge in Pennsylvania who resigned from the Spruce Creek Rod and Gun Club in 1999. He was nominated by President George W. Bush in 2001 (and eventually confirmed) for a seat on the U.S. Court of Appeals for the Third Circuit. His flaying by Democrats was recently detailed in the American Spectator.
Conservatives complain that Democrats are once again applying a familiar double-standard, denouncing white male Republicans as sexist or racist for relatively innocuous forms of discrimination or remarks while smiling on analogous conduct by female and minority Democrats.
Continue reading The Case For -- And Against -- Double Standards.
(This analysis updates my July 12, 2008, column.)
We in the media habitually describe the Supreme Court as made up of four conservatives, four liberals and one swing-voting centrist, Anthony Kennedy. These labels serve reasonably well to situate the justices on the ideological spectrum compared with one another.
But while the court is sometimes called "conservative," it looks pretty liberal if we chart the justices' rulings and individual views against general public opinion, as measured by poll results on issues including abortion, race, national security, religion, gay rights, gun rights and the death penalty.
The four more liberal justices -- John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- all fall markedly to the left of public opinion on every one of the abovementioned issues. So does Kennedy, when it comes to national security, religion, gay rights, the death penalty and to some extent abortion. Judge Sonia Sotomayor is widely expected to be at least as liberal as Souter, whom she would replace.
If President Obama gets an opportunity to replace one of the five more conservative justices, the new majority will be quite dramatically to the left of public opinion. And voters will, of course, remain powerless to overturn the justices' constitutional interpretations.
Justices Antonin Scalia and Clarence Thomas fall markedly to the right of center. But the same does not appear to be true -- not yet, at least -- of Chief Justice John Roberts and Justice Samuel Alito.
Indeed, while those two George W. Bush appointees appear to be politically conservative by some measures, the description of them as far right by the New York Times editorial page says more about the editorialists than about the justices. So far, Roberts' and Alito's opinions and votes have been considerably closer to the center than those of the four liberals.
Continue reading Court More Liberal Than Public Opinion.
From National Journal's June 13 issue:
I admire many things about Judge Sonia Sotomayor, especially her deep compassion for underprivileged people. I may well support her confirmation to the Supreme Court if her testimony next month dispels my concern that her decisions may be biased by the grievance-focused mind-set and the "wise Latina woman" superiority complex displayed in some of her speeches.
But close study of her most famous case only enhances my concern. That's the 2008 decision in which a panel composed of Sotomayor and two Appeals Court colleagues upheld New Haven's race-based denial of promotions to white (and two Hispanic) fire-fighters because too few African-Americans had done well on the qualifying exams.
The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.
Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.
Continue reading the column here.
My quick reaction to the July 13 timetable just announced by Senate Judiciary Chairman Patrick Leahy, D-Vt., is that Republicans probably don't have much basis for disputing it. As Leahy's statement details, the timetable he is using gives the Republicans about as much time as Democrats had to prepare for the hearings of John Roberts and Samuel Alito.
In addition, in the case of Roberts and to some extent that of Alito, it took time to obtain documents the nominees had authored as Justice Department officials during prior Republican administrations. Since Judge Sonia Sotomayor has never worked for the executive branch, it appears that all or virtually all significant documents written by her as a government official -- including her judicial opinions -- are already public, with the exception of her time as an assistant DA in New York City. (Internal memoranda Sotomayor has written for her colleagues or clerks while on the bench will presumably be considered confidential, as has been true of past nominees.)
Should the confirmation hearings begin according to Leahy's schedule, it would put Sotomayor on track to be confirmed by Aug. 7 at the latest -- unless Republicans stretch out the debate or filibuster.
To Josh Patashnik of The New Republic, my latest column was "a real head-scratcher." On the magazine's blog, he refutes what he believes I argued -- that "the Supreme Court should ban racial preferences because it's what the majority of Americans want."
He concludes that "if any judicial philosophy qualifies as 'activist,' then the one Taylor proposes -- that the role of a court is to implement what it sees as the will of the public when the political branches fail to -- surely qualifies."
To the contrary, a decision reversing Ricci would not stretch the meaning of the Constitution in the slightest. Rather, as my column stated, it would "vindicate the central thrust of the 1964 Civil Rights Act and the Constitution's equal protection clause."
I respectfully submit that Patashnik's well-argued critique misapprehends my central points, in part -- I must confess -- because I muddied them up a bit by trying to pack too many ideas into too few sentences and failing to make clear the logical steps underlying my argument. For those interested in whether overturning Ricci should be defined as "judicial activism," I have posted a response to Patashnik in which I unpack those steps.
Once there, scroll down to see the comment.
From National Journal's June 6 issue:
Conservative critics of Judge Sonia Sotomayor may be digging themselves into a hole if they keep hurling the tired old "liberal activist" slogan at her. The reason is that her supporters can plausibly retort that these days, the Supreme Court's conservatives are as activist as the liberals, especially on racial issues.
But conservatives and like-minded centrists can win the political debate if they focus not on buzzwords but on in-depth, civil discourse about the very big issue on which Sotomayor and her liberal supporters are most at odds -- and the conservative justices most in tune -- with the vast majority of Americans.
That issue is racially preferential affirmative action. By this, I mean the many forms of supposedly benign discrimination against whites and Asians that have been engineered over the past 45 years to advance blacks and Hispanics in the workforce, in college admissions, and in government contracting.
The long-standing public disapproval of such preferences was documented yet again by a major Quinnipiac University poll released on June 3, showing that American voters, by a lopsided margin, want them abolished.
Initiated in the 1960s as a temporary expedient, racial preferences may well become permanent if a Justice Sotomayor is eventually joined on the Court by a like-minded successor to one of the Court's conservatives. (The justice Sotomayor would replace, David Souter, also supports preferences.)
The now-famous New Haven, Conn., firefighter case is a perfect symbol of how the sort of preferences she supports can operate as raw racial discrimination.
Sotomayor voted with two other judges last year to uphold the city's denial of promotions to white firefighters who had studied hard for months and done well on a scrupulously fair test of job-related skills. But because no African-Americans did well enough to qualify, the city decided that nobody would be promoted, claiming that it feared a "disparate impact" lawsuit by low-scoring blacks. (See May 30 column.)
The Quinnipiac poll showed that respondents, by well over 3-to-1, want the Supreme Court to overturn the Appellate panel's decision. And although the poll shows that this has not yet hurt Sotomayor's popularity much, the case will become more salient later this month. The justices are widely expected to reverse the panel's decision.
None of this is to suggest that the nominee's racially preferential actions put her outside the liberal Democratic mainstream. Quite the contrary. Most liberals are addicted to racial preferences and identity politics.
But this puts liberal Democrats very far out of sync with the overwhelming majority of Americans, including us centrists. President Obama made noises during the campaign that seemed to suggest he understood this. But the Sotomayor nomination -- for all her inspiring accomplishments, powerful intellect, and devotion to the underprivileged -- looks like a strong Obama endorsement of the racial preferences and identity politics that she has supported.
Continue reading the column here.
I hear that Keith Olbermann declared on MSNBC Tuesday evening that I am "runner-up" for his "hypocrisy award" and also "a fraud."
In case anyone takes Olbermann seriously, I identify below the false and misleading assertions of fact that he packed into his 60-second diatribe.
• Olbermann claimed that I characterized Sonia Sotomayor's 1974 letter to the editor accusing Princeton University of discrimination as a "decisive" reason to oppose her nomination.False. I wrote nothing close to that, and I do not see Sotomayor's letter as disqualifying. I have consistently indicated that debate about this nomination should focus mostly on her judicial decisions and speeches, which I have analyzed at length. My only critical comment in my brief post about her 1974 letter was that "some may see [it] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities."
Olbermann quoted that sentence, but then falsely implied that I had been far more damning -- while omitting my statement in the preceding paragraph that others may see her success at Princeton as proof of her brilliance in overcoming the discrimination of which she complained.
• Olbermann claimed that Sotomayor's 1974 letter was "milquetoast and accurate" in complaining "about the lack of opportunities for Hispanics at her school."
False again. "Milquetoast?" Sotomayor's language -- which Olbermann carefully avoided quoting -- made Princeton sound a bit like a genocidal dictatorship. She accused the school of "institutional discrimination," of "total absence of regard, concern and respect for an entire people and their culture," and of "an attempt -- a successful attempt so far -- to relegate an important cultural sector of the population to oblivion."
"Accurate?" Sotomayor did not cite a single example of discrimination by anyone against a single Hispanic student. Nor did she cite a single specific opportunity that had been denied to any Hispanic student. Her entire complaint was that Princeton had no Puerto Rican or Chicano administrator or faculty member; had fewer students of those ethnicities than Sotomayor wanted; and had no "permanent" course dealing "in any notable detail" with the Puerto Rican or Chicano culture.
• Olbermann claimed that in 2006 I characterized then-Judge Samuel Alito's legal memos of two decades before as "too distant and irrelevant to matter" in the debate over his nomination.
Highly misleading. I never said or implied that Alito's old legal memos did not matter. I did write (as quoted elsewhere in Olbermann's rant) that Alito's critics had "ignored much evidence that his 15 years of steady, scholarly, precedent-respecting work as a judge tell us more about him than a handful of widely (and misleadingly) publicized memos that he wrote more than 20 years ago." I also showed that Alito's memos (unlike Sotomayor's 1974 letter) had been both widely publicized and grossly distorted by (among others) The Washington Post and The New York Times.
• Olbermann concocted his "hypocrisy" and "fraud" charges by juxtaposing his misrepresentation of what I wrote about Sotomayor with his misrepresentation of what I wrote about Alito.
Dishonest. My approach to analyzing both nominees has been the same: Old letters and memos are of some relevance but should not be distorted, and actions as a judge are much more relevant.
In smearing me as unfair to Judge Sotomayor, Olbermann ignored the fact that on the day she was nominated I praised her intellect and accomplishments (while expressing some concerns) on his own network (MSNBC), BBC, the "Charlie Rose" show, and "The Diane Rehm Show."
Judge Sonia Sotomayor said in a 1996 speech at Princeton University's Third World Center (now called the Carl A. Fields Center) that when she arrived at Princeton in 1972 as her high school's valedictorian, "I found out that my Latina background had created difficulties in my writing that I needed to overcome. For example, in Spanish we do not have adjectives. A noun is described with a preposition.... My writing was stilted and overly complicated, my grammar and vocabulary skills weak."
To catch up with her prep school classmates, Sotomayor recalled, "I spent one summer vacation reading children's classics that I had missed in my prior education -- books like Alice In Wonderland, Huckleberry Finn and Pride and Prejudice. My parents spoke Spanish; they didn't know about these books. I spent two other summers teaching myself anew to write."
She taught herself well, graduating summa cum laude and winning the prestigious Pyne Prize in her senior year. The prize was for academic excellence and -- Judge Sotomayor said in the 1996 speech -- "because of my work with Accion Puertorriquena, the Third World Center and other activities in which I participated, like the university's Discipline Committee."
These honors reflect, among other things, a high grade on Sotomayor's 178-page senior thesis, La Historia Ciclica De Puerto Rico. The Impact Of The Life Of Luis Muñoz Marin On The Political And Economic History of Puerto Rico, 1930-1975.
We don't know what the exact grade was, as far as I've seen, but an award-winning history professor -- K.C. Johnson of Brooklyn College and CUNY Graduate Center -- who read it at my request concluded that "the thesis would probably receive an A/A minus or an A minus." (Johnson and I co-authored a 2007 book on the Duke lacrosse rape fraud.)
Continue reading Grading Sotomayor's Senior Thesis.
The concerns that I and others have raised about Judge Sonia Sotomayor's now famous "wise Latina woman" speech, and about her vote last year to uphold race-based discrimination in promotions among New Haven firefighters, raise this question:
Has Sotomayor exhibited a pattern of favoritism to minorities in race-related cases during her more than 10 years on the U.S. Court of Appeals for the 2nd Circuit?
The answer is no, according to Tom Goldstein of Akin Gump's Washington office, a leading Supreme Court litigator. He has published on SCOTUSBlog, in two installments, the results of his own study of the 97 race-related cases Sotomayor has helped decide on the appeals court.
After summarizing statistics indicating that Sotomayor is not especially prone to rule for plaintiffs in discrimination cases and rarely disagrees with her 2nd Circuit colleagues in such cases, Goldstein concludes:
"Given that record, it seems absurd to say that Sotomayor allows race to infect her decisionmaking."
Others may look at the same cases and draw different conclusions. And Goldstein's analysis does not altogether dispel my concerns that once on the Supreme Court, Sotomayor's sympathies for particular groups may skew her views of the facts and the law. See my past columns here, here and here.
For the best detailed dissection of Sotomayor's 2001 speech, by Steve Chapman, read his column in the Sunday Chicago Tribune.
But with respect to Sotomayor's overall record in race-related cases on the appeals court, Goldstein's analysis is reassuring. Her critics now have the burden of showing either that Goldstein's analysis is wrong or that the nominee's record on the appeals court is not a valid predicter of what she would do on the Supreme Court.
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.
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.
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.
Continue reading The Politics Of Naming Sotomayor.
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.
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."
Continue reading Should Justice Be Driven By 'Empathy'?.
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.
Continue reading Indirect Vetting: Necessary But Tricky.
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.
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.
Continue reading 12 Points To Consider Replacing Souter.
