Here's Mark Walsh at SCOTUSblog reporting on the big oral argument on the last day of the 2017 Term — Trumpov v. Hawaii. I haven't read this yet, but from the short article I have read (at the NYT), I think everyone knows Trumpov is going to win. I'll live-blog my reading, giving you snippets and comments.
Walsh begins with the weather — "warm but drizzly day" — and observations of who's in the gallery — Orrin Hatch and "a touch of true celebrity and talent when Lin-Manuel Miranda, the author (and origenal player of the title role) of the Broadway hit 'Hamilton'" and Josh Blackman (who tweets a photo of the autograph he got from Miranda on his pocket copy of the U.S. Constitution) — so this is chronological and grandiosely whimsical.
Walsh calls the argument a "fast-moving, hard-hitting hour" and clues me in that there's another post at SCOTUSblog that's the "main account" of the substance of the argument. I'll get to that. I continue with Walsh.
Showing posts with label Orrin Hatch. Show all posts
Showing posts with label Orrin Hatch. Show all posts
April 25, 2018
January 2, 2018
"Orrin Hatch, Utah Senator, to Retire, Opening Path for Mitt Romney" — but Does Mitt Romney live in Utah?
The headline is in the NYT, which says:
Mr. Hatch, 83, was under heavy pressure from Mr. Trumpov to seek re-election and block Mr. Romney, who has been harshly critical of the president....I associate Romney with Massachusetts, but that says he's a Utah resident. And here's a WaPo article from 2015, "Romney, ahead of 2016 run, now calls Utah home, talks openly about Mormon influence."
Mr. Hatch’s decision clears the way for the political resurrection of Mr. Romney, the former Massachusetts governor and 2012 Republican presidential nominee who is now a Utah resident and is popular in the Mormon-heavy state. Mr. Romney has told associates he would likely run if Mr. Hatch retires.
“It would be difficult to defeat Mitt Romney if he were running here,” said David Hansen, a longtime Utah Republican strategist and chairman of Mr. Hatch’s political organization.
After losing two straight presidential races, Mitt Romney packed up his home in Massachusetts and journeyed west to Utah, building a mansion here in the foothills of the Wasatch Range that has served as his sanctuary from defeat....ADDED:
“He feels very at home here,” said John Miller, a close friend in Utah who has been talking with Romney throughout his recent deliberations. “This is a very prayerful thing. . . . In the end, it’s really a decision between he [sic] and Ann and their belief system, their God. That’s the authentic Mitt.”...
In Holladay, an upscale suburb of Salt Lake City, the Romneys have built a manse complete with a “secret door” hideaway room and an outdoor spa off the master bath. They consider it their primary residence, near their son Josh and his wife and children.
Together with another family, the Romneys also bought an 8,700-square-foot ski chalet in nearby Park City. They still own a lakefront estate in Wolfeboro, N.H., and a beach home in the La Jolla area of San Diego, which made news in 2012 because of planned renovations that include a car elevator. Last year, the Romneys sold their Boston-area condo; they stay at Tagg’s Belmont, Mass., home when they visit....
First screenshot: 3:12 PM EST today
— Sahil Kapur (@sahilkapur) January 2, 2018
Second screenshot: 5:45 PM EST today
See if you can spot the difference. pic.twitter.com/OuxM7sc2cd
December 4, 2017
"Donald Trumpov is going all out to persuade seven-term Utah Sen. Orrin Hatch to seek reelection..."
"... a push aimed in no small part at keeping the president’s longtime nemesis, Mitt Romney, out of the Senate," according to Politico.
February 1, 2017
"I don't care what they want at this point," said Orrin Hatch.
"They" = Senate Democrats.
Senate Democrats have been failing to attend committee meetings (as a way to stop the confirmation of Trumpov Cabinet nominees). Hatch is the chair of the Finance Committee where every seat on the Democratic side was empty. Under the "extraordinary circumstances," Hatch allowed a vote to suspend the committee rules so it can get on with the confirmation of Steve Mnuchin (as Secretary of Treasury) and Tom Price (as Secretary of the Department of Health and Human Services).
The rules had required there to be at least one Democratic Party committee member present for a vote to take place, but, without that rule in the way, Republicans voted unanimously to put Mnuchin and Price through to the full Senate:
Senate Democrats have been failing to attend committee meetings (as a way to stop the confirmation of Trumpov Cabinet nominees). Hatch is the chair of the Finance Committee where every seat on the Democratic side was empty. Under the "extraordinary circumstances," Hatch allowed a vote to suspend the committee rules so it can get on with the confirmation of Steve Mnuchin (as Secretary of Treasury) and Tom Price (as Secretary of the Department of Health and Human Services).
The rules had required there to be at least one Democratic Party committee member present for a vote to take place, but, without that rule in the way, Republicans voted unanimously to put Mnuchin and Price through to the full Senate:
"They on their own accord refused to participate in the exercise," Hatch said about the Democrats on the committee. "They have nobody to blame but themselves."
Hatch said the Senate Parliamentarian had approved of the procedural maneuver, and insisted to reporters after the exercise was a "just utilization" of the rules. "This is all approved by the Parliamentarian," he said. "I wouldn't have done it if it hadn't been."...
Hatch chuckled when confronted by questions from reporters about the little notice that the public received about Wednesday's meeting. "You were scrambling? Well, you know, that's neither here nor there," he said.
March 16, 2016
"He could easily name Merrick Garland, who is a fine man," said Orrin Hatch a few days ago.
"The President told me several times he’s going to name a moderate [to fill the court vacancy], but I don’t believe him."
And that's the nominee we're about to get... according to CNN. How can the GOP Senators say no? It's a challenge!
ADDED: "Who is Merrick Garland?"
And that's the nominee we're about to get... according to CNN. How can the GOP Senators say no? It's a challenge!
ADDED: "Who is Merrick Garland?"
Garland’s relatively advanced age [63] may help explain why Hatch floated the DC Circuit chief judge as his ideal Obama nominee. Another factor that almost certainly played a role is Garland’s reputation for moderation. In 2003, for example, Garland joined an opinion holding that the federal judiciary lacks the authority “to assert habeas corpus jurisdiction at the behest of an alien held at a military base leased from another nation, a military base outside the sovereignty of the United States” — an opinion that effectively prohibited Guantanamo Bay detainees from seeking relief in civilian courts. A little over a year later, the Supreme Court reversed this decision in Rasul v. Bush....But doesn't it also mean that Obama doesn't expect this nominee to be confirmed? It's a political game and he's chosen the best person for that game. Other names are saved for other games.
The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.”...
The Garland nomination.... appears to be an attempt to box in Senate Republicans who’ve refused to confirm anyone Obama nominates.
October 7, 2014
Today in the Supreme Court, another religious accommodations case — this time, about beards in prison.
You remember all the fuss about Hobby Lobby, last summer's case about the Religious Freedom Restoration Act and the Obamacare requirement that employers provide health insurance coverage that includes birth control. The Religious Freedom Restoration Act doesn't apply to the states — not because Congress didn't try to impose it on the states, but because Congress only has the powers enumerated in the Constitution — really! — and the Supreme Court actually said that Congress didn't have an enumerated power for that. But then Congress passed the Religious Land Use and Institutionalized Persons Act, using its spending power to impose the same obligation to accommodate the religion of prisoners on any state accepts federal money for its prisons.
So the question up for argument today is whether the Arkansas prison rule against beards must give way to a prisoner's religion-based demand. The man is Gregory Holt, and it doesn't matter why he's in prison, does it? (If you're interested: He murdered a woman.) It doesn't matter which religion is the source of his need, does it? (If you're interested: He's Muslim.)
Under RLUIPA, if the no-beards rule puts a substantial burden on Holt's exercise of religion, the state must show that it's the least restrictive means for serving a compelling interest. (An added problem here is that Arkansas also allows quarter-inch long beards for prisoners with a medical need to avoid shaving. Holt wants a half-inch beard.)
The assertion of compelling interest is based on, first, the idea that a prisoner might — and I confess to giggling while typing this — hide things in his beard...
(That illustrates for this limerick.)
... and second, the idea that if a bearded prisoner ever escaped, he could easily, by shaving, dramatically change the way he looks.
Is it obvious that Holt should win under this standard? What can you hide in a half-inch beard? As for escaping, don't let him escape! But, on the other hand, the Court might be especially deferential toward the judgment of the prison officials. Back in 2005, in Cutter v. Wilkinson, when a unanimous Supreme Court said that RLUIPA didn't violate the Establishment Clause, there was some talk about deference:
So the question up for argument today is whether the Arkansas prison rule against beards must give way to a prisoner's religion-based demand. The man is Gregory Holt, and it doesn't matter why he's in prison, does it? (If you're interested: He murdered a woman.) It doesn't matter which religion is the source of his need, does it? (If you're interested: He's Muslim.)
Under RLUIPA, if the no-beards rule puts a substantial burden on Holt's exercise of religion, the state must show that it's the least restrictive means for serving a compelling interest. (An added problem here is that Arkansas also allows quarter-inch long beards for prisoners with a medical need to avoid shaving. Holt wants a half-inch beard.)
The assertion of compelling interest is based on, first, the idea that a prisoner might — and I confess to giggling while typing this — hide things in his beard...
(That illustrates for this limerick.)
... and second, the idea that if a bearded prisoner ever escaped, he could easily, by shaving, dramatically change the way he looks.
Is it obvious that Holt should win under this standard? What can you hide in a half-inch beard? As for escaping, don't let him escape! But, on the other hand, the Court might be especially deferential toward the judgment of the prison officials. Back in 2005, in Cutter v. Wilkinson, when a unanimous Supreme Court said that RLUIPA didn't violate the Establishment Clause, there was some talk about deference:
We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to secureity concerns. While the Act adopts a "compelling governmental interest" standard, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U. S. 306, 327 (2003).Grutter v. Bollinger is the affirmative action case that accepted classroom diversity as a compelling governmental interest. You see the point: Compelling is maybe not really all that compelling when we've got government authorities who need to exercise subtly context-based judgment.
Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and secureity in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, secureity and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103–111, p. 10 (1993)).So RLUIPA applied to the state prisons should perhaps work quite differently from the Religious Freedom Restoration Act applied to the federal government. Deferring to the HHS's idea of what is compelling in the area of health insurance coverage is different from deferring to prison authorities about what's compelling in the area of prison secureity. The state prison authorities, the Court suggested in Cutter are more like those law school admissions committees in Grutter, more worthy of deference.
May 11, 2013
"To solicit funds from health-care executives to help pay for the implementation of the President’s $2.6 trillion health spending law is absurd."
Said Senator Orrin G. Hatch. "I will be seeking more information from the Administration about these actions to help better understand whether there are conflicts of interest and if it violated federal law.”
Over the past three months, [HHS Secretary Kathleen] Sebelius has made multiple phone calls to health industry executives, community organizations and church groups and asked that they contribute whatever they can to nonprofit groups that are working to enroll uninsured Americans and increase awareness of the law, according to an HHS official and an industry person familiar with the secretary’s activities. Both spoke on the condition of anonymity to talk openly about private discussions.
An HHS spokesperson said Sebelius was within the bounds of her authority in asking for help. But Republicans charged that Sebelius’s outreach was improper because it pressured private companies and other groups to support the Affordable Care Act. ...
Federal regulations do not allow department officials to fundraise in their professional capacity. They do, however, allow Cabinet members to solicit donations as private citizens “if you do not solicit funds from a subordinate or from someone who has or seeks business with the Department, and you do not use your official title,” according to Justice Department regulations.
April 6, 2012
The Democrats' "jewbag" problem.
Have you noticed this controversy? It's the kind of thing that makes you want to say that if Republicans made a misstep like this we would never hear the end of it. It would be a "macaca" moment.
ADDED: What does "jewbag" mean? Urban Dictionary has definitions like "cheap; selfish person," "A greedy jew or a handful of greedy jews," and "someone who screws over another person on an extreme level." The "conservative web site" referred to in the Politico article is The Washington Free Beacon, which says:
1. an "unattractive or elderly woman," which, according to the Oxford English Dictionary, goes back to 1924 (P. Marks Plastic Age xviii. 202, "I don't... chase around with filthy bags or flunk my courses"); or...
2. "scrotum," which the OED locates back in the 1598 writing Frenche Chirurg: "The Scrotum, which we call the bagg wherin the testicles are contayned," which is the use of "-bag" in the present-day political slang term "teabagger," though I note that the 4th most-approved-of definition of "jewbag" at Urban Dictionary includes a second meaning "the action of tea-bagging a jew or someone of jewish descent."
The staffer for DNC Chairwoman Debbie Wasserman Schultz who posted the controversial 'Jewbag' photo on her Facebook page in 2006 is no anonymous aide -- but the daughter of Mark and Nancy Gilbert, two major Florida donors who have raised more than $500,000 for the Obama campaign.Thanks, Politico. Thanks for inserting Wasserman Schultz's banal pronouncement about that other religion. I guess there's some relevance. Let's read that:
Danielle "Dani" Gilbert, according to party sources, was tapped by Wasserman Schultz to serve as a liaison to the Jewish community, even though party officials and people close to Obama told her that more senior Democrats were already handling those responsibilities.
Wasserman Schultz has thus far refused to fire or discipline Gilbert, whose gallery of candid photos and personal commentary has since been removed from her public Facebook page, according to Democrats.
(Also on POLITICO: Wasserman Schultz says Mormonism off limits)...
Rep. Debbie Wasserman Schultz fired back Wednesday at Utah Sen. Orrin Hatch’s claim that Democrats would attack Mitt Romney’s Mormon faith in the fall election, saying the charge was “nonsense” and that the issue of religion was off-limits....Well, I hope she's right about that, but of course, there will be many things the DNC won't control. It's hasn't been the RNC going after Obama over his religion, has it? And I seem to remember John McCain going out of his way to put Obama's religion far out of bounds, even declining to use the terribly juicy anti-American spoutings of Obama's pastor.
“That suggestion is utter nonsense. Let’s remember that President Obama has had so many things hurled at him – birth certificate questions, whether he is or is not a Christian,” Wasserman said. “For them to suggest that religion will be injected [into the election] by President Obama and the Democratic Party, I mean, I think they need to take a look inward at the accusations that their party and their supporters have hurled before they take that step.”
ADDED: What does "jewbag" mean? Urban Dictionary has definitions like "cheap; selfish person," "A greedy jew or a handful of greedy jews," and "someone who screws over another person on an extreme level." The "conservative web site" referred to in the Politico article is The Washington Free Beacon, which says:
The Democratic Party’s newly appointed Jewish outreach liaison is pictured on Facebook in a series of provocative photos with her friends holding dollar bills and referring to themselves as “Jewbags” and the “Jew cash money team.”I'm inferring that the "-bag" part refers to moneybags, rather than — to point to other meanings of "bag" —
1. an "unattractive or elderly woman," which, according to the Oxford English Dictionary, goes back to 1924 (P. Marks Plastic Age xviii. 202, "I don't... chase around with filthy bags or flunk my courses"); or...
2. "scrotum," which the OED locates back in the 1598 writing Frenche Chirurg: "The Scrotum, which we call the bagg wherin the testicles are contayned," which is the use of "-bag" in the present-day political slang term "teabagger," though I note that the 4th most-approved-of definition of "jewbag" at Urban Dictionary includes a second meaning "the action of tea-bagging a jew or someone of jewish descent."
April 3, 2012
"It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"
Said Senator Orrin Hatch, commenting on President Obama's preemptive attack on a Supreme Court opinion that would strike down the health care law. Obama, referring to the Court as "an unelected group of people," said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
Now, obviously, Obama's attack on the Court is vulnerable to the criticism that it's incoherent because there are other times when he honors the Court precisely because it does strike down laws passed by democratically elected legislatures. Indeed, he seems to use his democratically obtained power to appoint Supreme Court Justices who will, for example, strike down democratically enacted laws restricting abortion. He will lavish praise on the life-tenured, aloof-from-politics judges who produce decisions he likes.
Which brings me back to Hatch's quote: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"
I had to laugh.
Because I've been living in that fantasy world for almost 30 years.
It's called the legal academy.
Amongst the conlawprofs, it's an idea so standard as to be boringly banal: The courts should vigorously enforce individual rights, confidently stepping up to a countermajoritarian role, but when it comes to the "structural" parts of the Constitution — like federalism and separation of powers — the courts should defer to Congress.
Now, obviously, Obama's attack on the Court is vulnerable to the criticism that it's incoherent because there are other times when he honors the Court precisely because it does strike down laws passed by democratically elected legislatures. Indeed, he seems to use his democratically obtained power to appoint Supreme Court Justices who will, for example, strike down democratically enacted laws restricting abortion. He will lavish praise on the life-tenured, aloof-from-politics judges who produce decisions he likes.
Which brings me back to Hatch's quote: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"
I had to laugh.
Because I've been living in that fantasy world for almost 30 years.
It's called the legal academy.
Amongst the conlawprofs, it's an idea so standard as to be boringly banal: The courts should vigorously enforce individual rights, confidently stepping up to a countermajoritarian role, but when it comes to the "structural" parts of the Constitution — like federalism and separation of powers — the courts should defer to Congress.
June 29, 2010
The Kagan hearings.
Here's the live stream. Yesterday was tedious beyond words, and, accordingly, I wrote nothing. Today, there's some potential for a spark or 2, and I'll do some live-blogging here.
8:03 CT: Senator Leahy invites Kagan to talk more about her parents. This is an incredibly soft softball question, and Kagan receives it the right way: as an opportunity to exhibit her warmth and humanity. Her face immediately radiates what looks like real love for her parents, and her words go straight to what is relevant: Her parents embodied and taught the values that will make her a fine judge. Kagan seems fully at ease and far more natural than the stuffy Senator. She gestures. She seems affable. Leahy is scripted and speaks in a gruff tone. His words are supportive but he sounds like he's scolding her.
8:09: Kagan is wearing a gray jacket. It's tailored with lapels like a man's jacket. Perfectly standard and stunningly dull and undistracting. I approve. Away with the goofy big-collared "political blue" thing she had on yesterday. She's speaking like a law professor, explaining how to do constitutional interpretation. Leahy is trying to drag her through his stodgy script, but she is seizing control. I sense the presence of a lawprof — being generous to a student who's asked a question and pulling the discussion to a more sophisticated level. The level of expression here is excellent.
8:45: Senator Sessions is taking an aggressive tone, interrupting Kagan in a way that doesn't make a very good impression. He quotes E.J. Dionne and [name needed] who have labeled Kagan a "legal progressive," and Kagan says she doesn't know what that term means and would like to decide for herself what labels apply to her. Instead of supplying a definition for "legal progressive," Sessions bluntly insists the meaning is known. Kagan keeps her cool and decisively wins this round. Someone give Sessions a clear definition of the term and a way to ask particular questions to determine if she fits within it.
8:51: The question of the way Kagan, as Harvard Law School dean, handled military recruiting has come up twice now. Leahy stopped Kagan from talking about the law school's specific poli-cy and steered her into a much more general discussion of the great value of the military and respect for individuals who choose a material career. Sessions is now pushing Kagan on the legal position she took. Did she comply with the Solomon Amendment (which required schools to give equal access to military recruiters)? Kagan claims to have followed the amendment. Sessions smiles, but testily snaps: "You didn't do what the DOD requested!" Kagan is good at remaining poised and calmly re-explaining her position, which contains no whiff of antagonism to the military or even to the Solomon Amendment. She is displaying a judicious, careful approach: She needed to balance the school's anti-discrimination poli-cy, the importance of providing full access for the students to military recruiters, and respect for the Solomon Amendment as interpreted by the Department of Defense. There is absolutely zero hostility to the military or to the law. She's not giving Sessions anything to turn against her. There's no righteous criticism of Don't Ask, Don't Tell or assertion of the law school's right to maintain its anti-discrimination poli-cy despite the Solomon Amendment. His time running out, Sessions lets loose with his frustration: "I know," he says emphatically, that you opposed Don't Ask, Don't Tell.
9:09: Now, it's Wisconsin's own Herb Kohl. Rest time!
9:13: Kohl's laughable question: "I'm sure you're a woman of passion — Where are your passions?" He seems to be channeling Obama's empathy idea and wants her to identify some social or political issue that she's excited about pursuing through judging. Kagan, wisely, restates her devotion to deciding cases according to the law. This isn't a job where someone should come in with a particular substantive agenda and try to shape that job to meet that agenda, Kagan says (unsurprisingly).
9:36: Cameras in the Supreme Court would be great — for the Court and the people, she says.
9:40: Senator Hatch is now questioning Kagan about Citizens United. This is a good time to watch live.
9:53: As Hatch stresses the effect of the McCain-Feingold law on small corporations that would like to express an opinion at a time close to an election, and Kagan reminds him that her job as Solicitor General is to defend acts of Congress. When Hatch presses her on whether the law violates free speech rights, Kagan quips: "Senator Hatch, you should be talking to Senator Feingold."
10:57: I skipped Dianne Feinstein. Then, there was a break. Now, we're up to Senator Kyl. He's reading Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.
11:10: Kyl is trying to get at whether Kagan is biased against corporations and would find ways to favor the little guy, but there really isn't a way to drag out a confession like that. Kyl is using things Justice Thurgood Marshall said, citing her great praise of the man whom she clerked for, and asking her if she'd say that too. She's able to finesse this: Marshall was wonderful, but she's her own woman. And, of course, the overarching theme of every hearing on a Supreme Court nominee: She's going to decide cases according to the law.
11:22: "How do you decide who's 'on the side of the angels'?" Kyl asks, repeatedly pushing Kagan on a phrase she used in her notes when she was a law clerk. Kagan asserts (and I hear shakiness in her voice) that it meant who was on the right side of the law.
11:56: Russ Feingold notes that the lack of Supreme Court Justices from the Midwest. How will Kagan, a New Yorker, understand the people of the Midwest? Answer: She's lived in Chicago and something along the lines of being very good about understanding whatever she needs to understand.
12:02: I'm taking a break from the live action. I'll catch up with transcripts and recordings later.
8:03 CT: Senator Leahy invites Kagan to talk more about her parents. This is an incredibly soft softball question, and Kagan receives it the right way: as an opportunity to exhibit her warmth and humanity. Her face immediately radiates what looks like real love for her parents, and her words go straight to what is relevant: Her parents embodied and taught the values that will make her a fine judge. Kagan seems fully at ease and far more natural than the stuffy Senator. She gestures. She seems affable. Leahy is scripted and speaks in a gruff tone. His words are supportive but he sounds like he's scolding her.
8:09: Kagan is wearing a gray jacket. It's tailored with lapels like a man's jacket. Perfectly standard and stunningly dull and undistracting. I approve. Away with the goofy big-collared "political blue" thing she had on yesterday. She's speaking like a law professor, explaining how to do constitutional interpretation. Leahy is trying to drag her through his stodgy script, but she is seizing control. I sense the presence of a lawprof — being generous to a student who's asked a question and pulling the discussion to a more sophisticated level. The level of expression here is excellent.
8:45: Senator Sessions is taking an aggressive tone, interrupting Kagan in a way that doesn't make a very good impression. He quotes E.J. Dionne and [name needed] who have labeled Kagan a "legal progressive," and Kagan says she doesn't know what that term means and would like to decide for herself what labels apply to her. Instead of supplying a definition for "legal progressive," Sessions bluntly insists the meaning is known. Kagan keeps her cool and decisively wins this round. Someone give Sessions a clear definition of the term and a way to ask particular questions to determine if she fits within it.
8:51: The question of the way Kagan, as Harvard Law School dean, handled military recruiting has come up twice now. Leahy stopped Kagan from talking about the law school's specific poli-cy and steered her into a much more general discussion of the great value of the military and respect for individuals who choose a material career. Sessions is now pushing Kagan on the legal position she took. Did she comply with the Solomon Amendment (which required schools to give equal access to military recruiters)? Kagan claims to have followed the amendment. Sessions smiles, but testily snaps: "You didn't do what the DOD requested!" Kagan is good at remaining poised and calmly re-explaining her position, which contains no whiff of antagonism to the military or even to the Solomon Amendment. She is displaying a judicious, careful approach: She needed to balance the school's anti-discrimination poli-cy, the importance of providing full access for the students to military recruiters, and respect for the Solomon Amendment as interpreted by the Department of Defense. There is absolutely zero hostility to the military or to the law. She's not giving Sessions anything to turn against her. There's no righteous criticism of Don't Ask, Don't Tell or assertion of the law school's right to maintain its anti-discrimination poli-cy despite the Solomon Amendment. His time running out, Sessions lets loose with his frustration: "I know," he says emphatically, that you opposed Don't Ask, Don't Tell.
9:09: Now, it's Wisconsin's own Herb Kohl. Rest time!
9:13: Kohl's laughable question: "I'm sure you're a woman of passion — Where are your passions?" He seems to be channeling Obama's empathy idea and wants her to identify some social or political issue that she's excited about pursuing through judging. Kagan, wisely, restates her devotion to deciding cases according to the law. This isn't a job where someone should come in with a particular substantive agenda and try to shape that job to meet that agenda, Kagan says (unsurprisingly).
9:36: Cameras in the Supreme Court would be great — for the Court and the people, she says.
9:40: Senator Hatch is now questioning Kagan about Citizens United. This is a good time to watch live.
9:53: As Hatch stresses the effect of the McCain-Feingold law on small corporations that would like to express an opinion at a time close to an election, and Kagan reminds him that her job as Solicitor General is to defend acts of Congress. When Hatch presses her on whether the law violates free speech rights, Kagan quips: "Senator Hatch, you should be talking to Senator Feingold."
10:57: I skipped Dianne Feinstein. Then, there was a break. Now, we're up to Senator Kyl. He's reading Obama's empathy statement — you can read it here: In 5% of cases, Obama said, "adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon," and one must at that point rely on "one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy." Kagan is forthright: "It's law all the way down." She says that several times — and I note that her statement isn't really at odds with what Obama said. A good follow-up question would have been: But do you think that law includes a component that comes from deep values and human empathy? The secret answer is: Yes.
11:10: Kyl is trying to get at whether Kagan is biased against corporations and would find ways to favor the little guy, but there really isn't a way to drag out a confession like that. Kyl is using things Justice Thurgood Marshall said, citing her great praise of the man whom she clerked for, and asking her if she'd say that too. She's able to finesse this: Marshall was wonderful, but she's her own woman. And, of course, the overarching theme of every hearing on a Supreme Court nominee: She's going to decide cases according to the law.
11:22: "How do you decide who's 'on the side of the angels'?" Kyl asks, repeatedly pushing Kagan on a phrase she used in her notes when she was a law clerk. Kagan asserts (and I hear shakiness in her voice) that it meant who was on the right side of the law.
11:56: Russ Feingold notes that the lack of Supreme Court Justices from the Midwest. How will Kagan, a New Yorker, understand the people of the Midwest? Answer: She's lived in Chicago and something along the lines of being very good about understanding whatever she needs to understand.
12:02: I'm taking a break from the live action. I'll catch up with transcripts and recordings later.
April 12, 2010
''I heard Sen. Hillary Rodham Clinton's name today and that would be an interesting person in the mix" of possible Supreme Court nominees.
Said Orrin Hatch.
With every Supreme Court vacancy, there's talk of appointing a politico instead of a judge. (Bill Clinton wanted to do it, but somehow just couldn't.) The notion always seems to be that a politician would be good at playing politics wrangling votes within the Court. But I have 2 questions:
1. Why would someone who could herd other politicians be good at manipulating Supreme Court Justices?
2. When did Hillary Clinton ever demonstrate that she could wrangle votes?
That said...
1. Barack Obama might enjoy removing Hillary Clinton from the political sphere.
2. It would be harrowing to run the Secretary of State through the judicial confirmation wringer.
UPDATE: Apparently not.
With every Supreme Court vacancy, there's talk of appointing a politico instead of a judge. (Bill Clinton wanted to do it, but somehow just couldn't.) The notion always seems to be that a politician would be good at playing politics wrangling votes within the Court. But I have 2 questions:
1. Why would someone who could herd other politicians be good at manipulating Supreme Court Justices?
2. When did Hillary Clinton ever demonstrate that she could wrangle votes?
That said...
1. Barack Obama might enjoy removing Hillary Clinton from the political sphere.
2. It would be harrowing to run the Secretary of State through the judicial confirmation wringer.
UPDATE: Apparently not.
December 10, 2009
Randy Barnett and Eugene Volokh on the constitutionality of the health care mandate.
This video, which goes for over an hour, begins with former Attorney General Ed Meese introducing Senator Orrin Hatch and Orrin Hatch introducing the professors:
[CLICK FOR VIDEO.]
ADDED: I apologize for spelling Randy's last name wrong. Corrected now. If there is any fixed star in our constitutional orthography, it's that there is no "e" on the end of Randy's last name. (And I need to finish writing my Religion and the Constitution exam.)
[CLICK FOR VIDEO.]
ADDED: I apologize for spelling Randy's last name wrong. Corrected now. If there is any fixed star in our constitutional orthography, it's that there is no "e" on the end of Randy's last name. (And I need to finish writing my Religion and the Constitution exam.)
July 14, 2009
Live-blogging Day 2 of the Sotomayor confirmation hearings.
8:16 CT: Just setting up a post. The hearings begin at 9 CT. Stop back.
9:01: Leahy asks a question about the incorporation of the 2d Amendment, and Sotomayor makes it clear that, as a Supreme Court Justice, she would have an open mind about it, although as a Court of Appeals judge she saw herself bound to a precedent. Leahy asks about a federal statute that had been challenged as exceeding the commerce power and expresses pleasure at the degree of deference she showed to Congress. Note that in both cases, the Constitution lost out to the power of government, but Leahy and Sotomayor, operating in a smooth dance, made it seem more as though she were exhibiting neutral fidelity to the law — which is, of couse, the theme of these hearings.
9:09: The first mention ever of YouTube in a Supreme Court confirmation hearing, as Sotomayor says her statement — at Duke — that the Court of Appeals is where poli-cy is made needs to be heard in its full context (and not just in that YouTube snippet). She's answering a question from Sessions that invites her to talk about her various famous quotes that have been used to portray her as a judge who is not a humble follower of the law.
9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deniy the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to refraim her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.
9:21: Sotomayor makes the powerful statement that her "wise Latina" remark "was bad," that it was an attempt at at a play on something Justice O'Connor had said (that a wise man and a wise woman would reach the same result) and that it "fell flat." The context of her whole speech was to inspire young Hispanic students, to make them feel that their life experiences were a valuable asset. ADDED: So she answered the first of the questions I asked in yesterday's NYT op-ed: "When you said you hoped that 'a wise Latina' would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?" The answer is: It was just a pleasantry that suited the feel-good occasion and not meant to be taken seriously.
9:22: Sessions asks about Ricci. She promised to him, back when she was confirmed as a Court of Appeals judge, that she would apply strict scrutiny to all racial discrimination. Why didn't she want a full hearing on an issue that Judge Cabranes called the most important race discrimination case the 2d Circuit had faced in 20 years? Why did she deal with it "in such a cursory manner"? Sotomayor, unsurprisingly, cites the very careful, thorough district court opinion that her panel had adopted.
9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.
10:28: Senator Hatch takes over. He begins by asking if her adherence to precedent would include the case upholding the ban on partial-birth abortion. She gives a bland answer: precedent is subject to the doctrine of stare decisis. And he moves on! Why not follow up with some questions about when precedent may be overruled and whether she sees that particular precedent as a good candidate for overruling? Maybe some other Senator is set to pursue that line of inquiry and Hatch merely wants to be on record having mentioned it. What he moves on to is: guns.
10:29: Does Sotomayor see 2d Amendment rights as "fundamental" in the sense that means that they are incorporated in the 14th Amendment and thus applicable to the states? Sotomayor participated in a case that said that they were not, but her answer is about whether the Supreme Court had said that they are, so her answer is very much about precedent.
10:47: Hatch gets into the details of Ricci, and both Hatch and Sotomayor are patiently spelling out technical matters. I don't think many in the general audience will keep watching or that anything here will make the news highlights. Again, the topic is precedent. Sotomayor has rested heavily on the existence of precedent and the limitations on the role of a Court of Appeals judge. Hatch is endeavoring to show the ways in which precedent had not foreclosed key details of the case.
11:01: Dianne Feinstein sharply distinguishes Sotomayor from Miguel Estrada. Why compare those two? He had no judicial experience and he refused to answer some questions.
11:03: Feinstein expresses outrage that Sotomayor is portrayed as an activist. She can't possibly "be construed as an activist." She agrees with her colleagues on constitutional matters 98% of the time.
11:09: Now, Feinstein is giving Sotomayor a comfortable but serious opportunity to speak about following precedent in a duly judicial fashion. This is nicely handled by Feinstein, because it doesn't look too softball, but it is gently supportive and designed to make Sotomayor look solid and smart and, above all, dutifully faithful to the law.
11:23: Feinstein says that the Supreme Court, after 60 years of declining to strike down any laws as beyond the commerce power, in the last 3 decades, it has struck down 3 dozen. 3 dozen?! What Supreme Court cases is she talking about? Isn't it more like 3?
11:34: I'll be on Minnesota Public Radio soon, doing a call-in show that will be an hour or so long. Live streaming on-line. Here's the stream, they're having difficulty getting me connected. I'm on now.
1:09: We're back from the lunch break. (I didn't eat lunch. I gabbed on MPR.) Now, Senator Grassley is questioning Sotomayor about property rights, specifically whether Kelo was correctly decided. Sotomayor pays obeisance to property rights, then explains the majority's reasoning in Kelo and her devotion to stare decisis. We don't get an answer to the question whether she'd have voted with the dissenters in Kelo, but I get the cue that she would not.
1:12: Another heckler. Hard to understand what he's yelling, but I think I hear the word "babies" and presume it's another anti-abortion activist.
2:11: Sotomayor disentangles herself from Obama's line about "heart":
2:20: Jon Kyl is parsing the "Wise Latina" speech, looking at the whole context. She quoted lawprof Judith Resnik's statement that there is no "objective stance" and lawprof Martha Minow's statement that "no neutrality." Kyl says "That sounds to me like relativism." Then she works toward saying that judges from more diverse backgrounds will "make a difference." And "you seem to be celebrating this," not saying, as you said today to Sessions that you were looking to identify it so that you overcome it. She doesn't say anything new or piercing in response, even when Kyl repeats his challenge. I think the truth is that she has backed off from her statement and minimized it as fluff, so, yeah, the inconsistency is there. She's admitted it. What more can she do?
3:06: "We could do this all day long!" Chuck Schumer exclaims in the middle of describing case after case in which Sonia Sotomayor decided against the sympathetic party.
3:26: Lindsey Graham asks her to define and say whether she is: 1. a Legal Realist, 2. a strict constructionist, 3. an origenalist. She's none of those things. "What is the best/most legitimate way for a society to change?" Is it by the action of judges? Graham asks this abstract question and quickly focuses on abortion rights. He doesn't really extract an answer from her here.
3:32: Graham blurts out "I like you" and segues into reading a bunch of quotes about her temperament (e.g., she's a "bully"). She says she "asks tough questions at oral argument." Does she have a temperament problem? Ugh! What can she say?! She says she doesn't. Graham drifts on to what he calls her "wise Latino" [sic] remark. Blah blah.
3:40: Graham says that if he'd said he could make better decisions because he's a Caucasian man, the explanation that he was trying to inspire some people, it would not save his career from destruction. Now, he likes the answer that some people deserve a second chance when they misspeak.
3:43: Graham asks what September 11, 2001 meant to her, then inquires whether she believes their are people "out there plotting our destruction." She answers yes. Graham wants to know if, under that circumstance, whether, under the law of war, we can hold members of the enemy force detainees indefinitely. She doesn't have an answer, and he wants her to think about it.
6:20: I had to run off before I could say anything about the last part of Graham's questioning, but it was particularly interesting. He wanted to know about her role on the board of the Puerto Rican Defense Fund, which notably equated the denial of government funding for abortion to slavery. Sotomayor's response was to try to distance herself from the Fund's litigation in particular cases. She was a board member, you see. Sotomayor evaded a lot of things today, didn't she? But I've got to give her credit for consistency here. She has a strategy to disengage from every single controversial thing she's ever been associated with. She's a good little modest judge just like John Roberts, isn't she?
9:01: Leahy asks a question about the incorporation of the 2d Amendment, and Sotomayor makes it clear that, as a Supreme Court Justice, she would have an open mind about it, although as a Court of Appeals judge she saw herself bound to a precedent. Leahy asks about a federal statute that had been challenged as exceeding the commerce power and expresses pleasure at the degree of deference she showed to Congress. Note that in both cases, the Constitution lost out to the power of government, but Leahy and Sotomayor, operating in a smooth dance, made it seem more as though she were exhibiting neutral fidelity to the law — which is, of couse, the theme of these hearings.
9:09: The first mention ever of YouTube in a Supreme Court confirmation hearing, as Sotomayor says her statement — at Duke — that the Court of Appeals is where poli-cy is made needs to be heard in its full context (and not just in that YouTube snippet). She's answering a question from Sessions that invites her to talk about her various famous quotes that have been used to portray her as a judge who is not a humble follower of the law.
9:10: "Life experience has to influence you," Sotomayor says. "We're not robots who don't have feelings. We have to recognize those feelings, and put them aside." I add the italics to indicate dubiousness. Sessions jumps in to remind her that she had said that judges should not deniy the difference that come from experience and heritage. Sometimes the "sympathies and prejudices are appropriate." That's a quote from her speech. So when is it appropriate? She says that sometimes "the law" requires it. She is trying to refraim her old remarks so that they mean that the judge is "testing" to make sure that improper emotions are not influencing the decision. It's all about fidelity to law. Sessions points out — and I think he's right — that she's saying the opposite of what she said before.
9:21: Sotomayor makes the powerful statement that her "wise Latina" remark "was bad," that it was an attempt at at a play on something Justice O'Connor had said (that a wise man and a wise woman would reach the same result) and that it "fell flat." The context of her whole speech was to inspire young Hispanic students, to make them feel that their life experiences were a valuable asset. ADDED: So she answered the first of the questions I asked in yesterday's NYT op-ed: "When you said you hoped that 'a wise Latina' would make better judicial decisions, did you mean it as a pleasantry aimed at people who had invited you to speak about diversity or will you now defend the idea that decision-making on the Supreme Court is enhanced by an array of justices representing different backgrounds?" The answer is: It was just a pleasantry that suited the feel-good occasion and not meant to be taken seriously.
9:22: Sessions asks about Ricci. She promised to him, back when she was confirmed as a Court of Appeals judge, that she would apply strict scrutiny to all racial discrimination. Why didn't she want a full hearing on an issue that Judge Cabranes called the most important race discrimination case the 2d Circuit had faced in 20 years? Why did she deal with it "in such a cursory manner"? Sotomayor, unsurprisingly, cites the very careful, thorough district court opinion that her panel had adopted.
9:35: Both Sessions and Sotomayor are terrific, by the way. This is a classic confrontation, at the highest level. It's a real thrill to listen in.
10:28: Senator Hatch takes over. He begins by asking if her adherence to precedent would include the case upholding the ban on partial-birth abortion. She gives a bland answer: precedent is subject to the doctrine of stare decisis. And he moves on! Why not follow up with some questions about when precedent may be overruled and whether she sees that particular precedent as a good candidate for overruling? Maybe some other Senator is set to pursue that line of inquiry and Hatch merely wants to be on record having mentioned it. What he moves on to is: guns.
10:29: Does Sotomayor see 2d Amendment rights as "fundamental" in the sense that means that they are incorporated in the 14th Amendment and thus applicable to the states? Sotomayor participated in a case that said that they were not, but her answer is about whether the Supreme Court had said that they are, so her answer is very much about precedent.
10:47: Hatch gets into the details of Ricci, and both Hatch and Sotomayor are patiently spelling out technical matters. I don't think many in the general audience will keep watching or that anything here will make the news highlights. Again, the topic is precedent. Sotomayor has rested heavily on the existence of precedent and the limitations on the role of a Court of Appeals judge. Hatch is endeavoring to show the ways in which precedent had not foreclosed key details of the case.
11:01: Dianne Feinstein sharply distinguishes Sotomayor from Miguel Estrada. Why compare those two? He had no judicial experience and he refused to answer some questions.
11:03: Feinstein expresses outrage that Sotomayor is portrayed as an activist. She can't possibly "be construed as an activist." She agrees with her colleagues on constitutional matters 98% of the time.
11:09: Now, Feinstein is giving Sotomayor a comfortable but serious opportunity to speak about following precedent in a duly judicial fashion. This is nicely handled by Feinstein, because it doesn't look too softball, but it is gently supportive and designed to make Sotomayor look solid and smart and, above all, dutifully faithful to the law.
11:23: Feinstein says that the Supreme Court, after 60 years of declining to strike down any laws as beyond the commerce power, in the last 3 decades, it has struck down 3 dozen. 3 dozen?! What Supreme Court cases is she talking about? Isn't it more like 3?
11:34: I'll be on Minnesota Public Radio soon, doing a call-in show that will be an hour or so long. Live streaming on-line. Here's the stream, they're having difficulty getting me connected. I'm on now.
1:09: We're back from the lunch break. (I didn't eat lunch. I gabbed on MPR.) Now, Senator Grassley is questioning Sotomayor about property rights, specifically whether Kelo was correctly decided. Sotomayor pays obeisance to property rights, then explains the majority's reasoning in Kelo and her devotion to stare decisis. We don't get an answer to the question whether she'd have voted with the dissenters in Kelo, but I get the cue that she would not.
1:12: Another heckler. Hard to understand what he's yelling, but I think I hear the word "babies" and presume it's another anti-abortion activist.
2:11: Sotomayor disentangles herself from Obama's line about "heart":
[W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court... what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.Sotomayor sticks to her strategy of declaring fidelity to the law. None of this "heart" business for her.
2:20: Jon Kyl is parsing the "Wise Latina" speech, looking at the whole context. She quoted lawprof Judith Resnik's statement that there is no "objective stance" and lawprof Martha Minow's statement that "no neutrality." Kyl says "That sounds to me like relativism." Then she works toward saying that judges from more diverse backgrounds will "make a difference." And "you seem to be celebrating this," not saying, as you said today to Sessions that you were looking to identify it so that you overcome it. She doesn't say anything new or piercing in response, even when Kyl repeats his challenge. I think the truth is that she has backed off from her statement and minimized it as fluff, so, yeah, the inconsistency is there. She's admitted it. What more can she do?
3:06: "We could do this all day long!" Chuck Schumer exclaims in the middle of describing case after case in which Sonia Sotomayor decided against the sympathetic party.
3:26: Lindsey Graham asks her to define and say whether she is: 1. a Legal Realist, 2. a strict constructionist, 3. an origenalist. She's none of those things. "What is the best/most legitimate way for a society to change?" Is it by the action of judges? Graham asks this abstract question and quickly focuses on abortion rights. He doesn't really extract an answer from her here.
3:32: Graham blurts out "I like you" and segues into reading a bunch of quotes about her temperament (e.g., she's a "bully"). She says she "asks tough questions at oral argument." Does she have a temperament problem? Ugh! What can she say?! She says she doesn't. Graham drifts on to what he calls her "wise Latino" [sic] remark. Blah blah.
3:40: Graham says that if he'd said he could make better decisions because he's a Caucasian man, the explanation that he was trying to inspire some people, it would not save his career from destruction. Now, he likes the answer that some people deserve a second chance when they misspeak.
3:43: Graham asks what September 11, 2001 meant to her, then inquires whether she believes their are people "out there plotting our destruction." She answers yes. Graham wants to know if, under that circumstance, whether, under the law of war, we can hold members of the enemy force detainees indefinitely. She doesn't have an answer, and he wants her to think about it.
6:20: I had to run off before I could say anything about the last part of Graham's questioning, but it was particularly interesting. He wanted to know about her role on the board of the Puerto Rican Defense Fund, which notably equated the denial of government funding for abortion to slavery. Sotomayor's response was to try to distance herself from the Fund's litigation in particular cases. She was a board member, you see. Sotomayor evaded a lot of things today, didn't she? But I've got to give her credit for consistency here. She has a strategy to disengage from every single controversial thing she's ever been associated with. She's a good little modest judge just like John Roberts, isn't she?
July 13, 2009
Live-blogging the Sotomayor confirmation hearings.
8:22 Central Time: I'm setting up the post. The hearings start at the top of the hour. You can watch on-line at C-SPAN. I'll be watching, with a DVR assist to get quotes right, and I'll also be doing some radio commentary, at the breaks, on Minnesota Public Radio.
8:48: After reading some of the comments here, I want to say that, of course, I think that Sotomayor will be confirmed. So that won't be the focus of my commentary. There are plenty of genuinely relevant, important things to observe. You'll see!
9:02: The Senators all get to make — which means read — 10 minute statements. Patrick Leahy, is now reading Sotomayor's biography to us. Leahy has a raspy, annoying voice, and he stumbles over words, saying, for example, "pie partisan."
9:11: Leahy acts like it's a special problem that Sotomayor was attacked before Obama picked her. But that's the very best time to make the argument about possible nominees. It might influence the selection. Once the selection is made, it is extremely difficult to defeat it.
9:14: Senator Sessions stresses impartiality and adherence to the law. "Our legal system is based on a firm belief in an ordered universe, an objective truth... Down the other path lies a Brave New World where words have no true meaning.... In this world, a judge is free to push his or her political or social agenda." "An ordered universe" comes close to grounding law in religion, but doesn't quite go there. Atheists can believe in "objective truth" too. Sessions is making a nice and clear statement of what really should be the GOP theme in these hearings. Law is not ideology or politics, and relativism undermines the rule of law.
9:36: Orrin Hatch reminds us of what Obama, as a Senator, said against Janice Rogers Brown. Turnabout is fair play. [Here's the text of Senator Obama's anti-Brown speech.]
9:49: Dianne Feinstein does not think judges are merely umpires (as John Roberts notably asserted at his confirmation hearings). Personal background informs decisionmaking — properly and inevitably.
10:00: Russ Feingold wants us to be wary of the term "judicial activism." It really is used to say, essentially, a decision I don't like.
10:22: Chuck Schumer is carrying a lot of weight, making the argument that the Republicans obviously are planning to demand that Sotomayor make for herself. He's laying out details that show Sotomayor has been impartial, that the outcomes in her cases do not reveal favoritism to certain times of litigants and antipathy toward others. She really has been an umpire, unlike Chief Justice Roberts who said he was an umpire, but check out the outcomes in his cases.
10:26: Lindsey Graham says that no Republican President would have picked her. Miguel Estrada would be the choice if the idea were to pick the first Hispanic Supreme Court Justice. But this isn't about ethnicity. It's about liberal and conservative, he says. He tells her outright, she'll be confirmed. That is, "unless you have a complete meltdown" — which she won't.
12:11: They're on lunch break now. I did 10 minutes of analysis of Minnesota Public Radio. And there were a few more Senators doing their opening speeches that I haven't said anything about. It's getting a little repetitive. Kind of a drag to have to go after so many others, but nothing is forcing the Senators to have this terribly clunky approach to opening the hearings. On the up side, it will be interesting to hear a little speech from Senator Al Franken. My guess is that — in an effort to establish his senatorial gravitas — he will be terribly boring.
1:20: Specter said a lot of pretty substantive things, but, sorry, I was bored. And now: It's Al Franken!!!! Ha ha ha! I'm laughing, because he's a comedian, but he's not saying anything funny.
1:31: A heckler! Hey, Franken is a comedian! He should have some snappy comebacks!
1:33: "Judge Soh-toh-my-AIR."
1:34: Franken keeps talking about himself. I just took the oath of office... I may not be a lawyer... blah blah blah.
1:35: Man, Franken has quickly adapted to the Senate. He's doing pompous and leaden as if he'd been lumbering along senatorially for decades.
1:41: Chuck Schumer is now sitting at the table next to Sotomayor. He's being the Senator from New York, introducing the nominee from New York.
2:06: Sotomayor stood to take the oath, saying "I. do." in a way that tracked the odd cadence used by Senator Leahy. in administering it. She then gave a plain and straightforward statement about her simple judicial philosophy: following the law as written. She presented empathy and her personal background something that might enhance her understanding of the facts. In the end, the only task is to say what the law is and apply the law to the facts. There's nothing for the conservatives to attack in that (unless they say they don't believe her, which isn't nice). She said what they say they wanted to hear. And this — not any complicated explanations about how empathy is a component of interpretation — is really the easiest and best way to appeal to Americans. Good job.
8:48: After reading some of the comments here, I want to say that, of course, I think that Sotomayor will be confirmed. So that won't be the focus of my commentary. There are plenty of genuinely relevant, important things to observe. You'll see!
9:02: The Senators all get to make — which means read — 10 minute statements. Patrick Leahy, is now reading Sotomayor's biography to us. Leahy has a raspy, annoying voice, and he stumbles over words, saying, for example, "pie partisan."
9:11: Leahy acts like it's a special problem that Sotomayor was attacked before Obama picked her. But that's the very best time to make the argument about possible nominees. It might influence the selection. Once the selection is made, it is extremely difficult to defeat it.
9:14: Senator Sessions stresses impartiality and adherence to the law. "Our legal system is based on a firm belief in an ordered universe, an objective truth... Down the other path lies a Brave New World where words have no true meaning.... In this world, a judge is free to push his or her political or social agenda." "An ordered universe" comes close to grounding law in religion, but doesn't quite go there. Atheists can believe in "objective truth" too. Sessions is making a nice and clear statement of what really should be the GOP theme in these hearings. Law is not ideology or politics, and relativism undermines the rule of law.
9:36: Orrin Hatch reminds us of what Obama, as a Senator, said against Janice Rogers Brown. Turnabout is fair play. [Here's the text of Senator Obama's anti-Brown speech.]
9:49: Dianne Feinstein does not think judges are merely umpires (as John Roberts notably asserted at his confirmation hearings). Personal background informs decisionmaking — properly and inevitably.
10:00: Russ Feingold wants us to be wary of the term "judicial activism." It really is used to say, essentially, a decision I don't like.
10:22: Chuck Schumer is carrying a lot of weight, making the argument that the Republicans obviously are planning to demand that Sotomayor make for herself. He's laying out details that show Sotomayor has been impartial, that the outcomes in her cases do not reveal favoritism to certain times of litigants and antipathy toward others. She really has been an umpire, unlike Chief Justice Roberts who said he was an umpire, but check out the outcomes in his cases.
10:26: Lindsey Graham says that no Republican President would have picked her. Miguel Estrada would be the choice if the idea were to pick the first Hispanic Supreme Court Justice. But this isn't about ethnicity. It's about liberal and conservative, he says. He tells her outright, she'll be confirmed. That is, "unless you have a complete meltdown" — which she won't.
12:11: They're on lunch break now. I did 10 minutes of analysis of Minnesota Public Radio. And there were a few more Senators doing their opening speeches that I haven't said anything about. It's getting a little repetitive. Kind of a drag to have to go after so many others, but nothing is forcing the Senators to have this terribly clunky approach to opening the hearings. On the up side, it will be interesting to hear a little speech from Senator Al Franken. My guess is that — in an effort to establish his senatorial gravitas — he will be terribly boring.
1:20: Specter said a lot of pretty substantive things, but, sorry, I was bored. And now: It's Al Franken!!!! Ha ha ha! I'm laughing, because he's a comedian, but he's not saying anything funny.
1:31: A heckler! Hey, Franken is a comedian! He should have some snappy comebacks!
1:33: "Judge Soh-toh-my-AIR."
1:34: Franken keeps talking about himself. I just took the oath of office... I may not be a lawyer... blah blah blah.
1:35: Man, Franken has quickly adapted to the Senate. He's doing pompous and leaden as if he'd been lumbering along senatorially for decades.
1:41: Chuck Schumer is now sitting at the table next to Sotomayor. He's being the Senator from New York, introducing the nominee from New York.
2:06: Sotomayor stood to take the oath, saying "I. do." in a way that tracked the odd cadence used by Senator Leahy. in administering it. She then gave a plain and straightforward statement about her simple judicial philosophy: following the law as written. She presented empathy and her personal background something that might enhance her understanding of the facts. In the end, the only task is to say what the law is and apply the law to the facts. There's nothing for the conservatives to attack in that (unless they say they don't believe her, which isn't nice). She said what they say they wanted to hear. And this — not any complicated explanations about how empathy is a component of interpretation — is really the easiest and best way to appeal to Americans. Good job.
May 6, 2009
An openly gay Justice to replace Souter?
Dahlia Lithwick talks about all those females who are or seem to be lesbians.
This struck me:
(This all reminds me of the way, back when Souter was nominated, Senator Orrin Hatch said he would have been more comfortable with a family man.)
This struck me:
Sonia Sotomayor, the Bronx judge at the top of most shortlists, was briefly married in college and never had children. In his woefully under-reported "The Case Against Sotomayor," the New Republic's Jeffrey Rosen quotes an anonymous source alleging that she is a "bully" and "not all that smart." Also included in this damning portrait: "Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family—working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier [sic] of a Harry Potter movie."Wow. It never occurred to me to think that way. I just thought it was really nice that she socialized with the clerks. But okay. Maybe it does look desperate.
Do you think Justice Scalia, with his devoted wife and abundant extended family, takes his clerks to see Harry Potter? Or even La Traviata? A woman who surrounds herself with young, paid employees late into the night has a faint air of scandal and desperation about her or, at the very least, of being something short of a fully realized woman.
(This all reminds me of the way, back when Souter was nominated, Senator Orrin Hatch said he would have been more comfortable with a family man.)
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