Tag Archives: Supreme Court

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The Politics Of Naming Sotomayor – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

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.

If Republicans attack Judge Sotomayor’s more controversial actions, they risk provoking a backlash among Hispanic voters, who have already been moving into the Democratic column in droves.

On the other hand, if Republicans hold their fire to avoid offending Hispanic voters, the president gets the benefit of installing a justice who seems deep into Democratic identity politics without the cost of an especially contentious confirmation battle.

The Republican dilemma is underscored by the fact that the Sotomayor actions they might be most eager to attack are themselves especially likely to engage the sympathies of Hispanic voters.

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Identity Politics And Sonia Sotomayor – The Ninth Justice

by Stuart Taylor, Jr.

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.

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Indirect Vetting: Necessary But Tricky – The Ninth Justice

by Stuart Taylor, Jr.

National Journal

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."

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Remote Control: The Supreme Court’s greatest failing

by Stuart Taylor, Jr.

National Journal

The following story originally appeared in the September 2005 issue of The Atlantic during another time of flux for the Supreme Court.

I’ve been working on some questions in case the makers of Trivial Pursuit ever decide to put forth a Supreme Court edition: Now that Sandra Day O’Connor has announced her retirement, how many remaining justices have ever held elected office? How many have previously served at the highest levels of the executive branch of government? How many have argued big-time commercial lawsuits within the past thirty-five years? How many have ever been either criminal defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answers are zero, zero, zero, one, and one, respectively. (David Souter was a New Hampshire prosecutor once upon a time, and later served as a trial judge.)

The answers would have been starkly different fifty years ago. Five of the nine justices who decided Brown v. Board of Education, in 1954, had once worked as trial prosecutors, and several had substantial hands-on experience in commercial litigation. More famously, that Court included a former governor, three former senators, two former attorneys general, two former solicitors general, and a former SEC chairman.

That Court, in other words, was intimately familiar with the everyday workings of the political and judicial systems, and with the beliefs and concerns of everyday Americans. Not so the Court that recessed in June, eight of whose members (in addition to their long tenure in the splendid isolation of the Supreme Court’s marble palace) have been drawn from judgeships on appellate courts, and sometimes from academic law before that — places already far removed from the hurly-burly of our judicial and political systems. The current justices are smart and dedicated. But they’re not like you and me.

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What’s At Stake: Supreme Court

by Stuart Taylor, Jr.

National Journal

The federal judiciary will become markedly more conservative if McCain wins and markedly more liberal if Obama does. This shift will affect the outcomes of cases involving a host of ideologically charged issues, including abortion; gay rights; affirmative action; the death penalty; the rights of suspected terrorists; gun control; property rights; the environment; regulation; and big-dollar lawsuits against business.

To woo conservatives who have long mistrusted him, McCain has bashed "activist judges" who "legislate from the bench." He has cited Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as his models of restraint.

Obama, who taught constitutional law at the University of Chicago, voted against the confirmations of Roberts and Alito, saying that they too often side with "the powerful against the powerless" and lack "empathy" for ordinary people.

The replacement of a retiring liberal justice by a conservative McCain appointee, or of a conservative by a liberal Obama appointee, could give the Supreme Court an ideologically solid majority for the first time in decades and gradually make a dramatic impact on the course of the law. That’s because the current Court is so closely — and deeply — divided. It has four liberals, four conservatives, and one justice (Anthony Kennedy) who swings depending on the issue.

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In the Balance

by Stuart Taylor, Jr.

National Journal

Among the starkest contrasts between John McCain and Barack Obama is the dramatic difference in their promised approaches to judicial appointments, especially to the closely divided Supreme Court.

McCain, eager to establish credibility with conservatives, has bashed liberal "activist judges" who intrude into "policy questions that should be decided democratically,"and essentially vowed to move the Court sharply to the right in judicial philosophy.

The presumptive Republican nominee has identified Bush-appointed Chief Justice John Roberts and Justice Samuel Alito as models.

Obama, who voted against both men during their Senate confirmation hearings, has said that they and the Court too often side with "the powerful against the powerless" and lack "empathy" for ordinary people. The presumptive Democratic nominee exudes determination to move the Court sharply to the left if he gets the chance.

At a time when the Court is precariously balanced–with four conservatives, four liberals (including the two oldest justices), and the ideologically eclectic Anthony Kennedy–these contrasting approaches have provided opposing activists with nightmare visions to rally the Democratic and Republican bases during the presidential race.

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Recent Supreme Court Decisions Show:

by Stuart Taylor, Jr.

Newsweek

Justice John Paul Stevens, the 88-year-old dean of the Supreme Court’s liberal bloc, is a gentleman of the old school. So it carried a special bite when he read from the bench late last month an unusually bitter dissent, castigating the conservative majority. He fumed against an unprecedented decision striking down a Washington, D.C., gun-control law. The conservatives had argued that the 217-year-old Second Amendment, which speaks of the necessity of a “well-regulated militia” and “the right of the people to keep and bear arms,” protects an individual’s right to keep a loaded handgun at home. Stevens assailed the decision as a betrayal of the conservatives’ long-professed devotion to “judicial restraint” and to the Constitution’s “original intent.” Joined by the other three liberals, he accused the majority of casting aside “settled law” and plunging into the “political thicket.”

Justice Antonin Scalia returned fire. Scalia spoke scornfully of the liberals’ analysis of the Second Amendment’s language and history–so scornfully as to imply that it must be a cover for an anti-gun political agenda. Speaking for the four conservatives and centrist Anthony Kennedy, Scalia accused the dissenters of judicial opportunism: the liberals were seeking to “pronounce the Second Amendment extinct,” he said. Scalia dismissed as “particularly wrongheaded” their reliance on a 1939 precedent; slammed as “bizarre” their parsing of the amendment’s language; whacked as “wholly unsupported” their discussion of English history, and said that Stevens “flatly misreads the historical record” of the Framers’ era.

The two blocs came close to calling each other hypocrites. Are they?

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Gay Marriage by Judicial Decree

by Stuart Taylor, Jr.

National Journal

I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court’s 4-3 decision on May 15 ordering the state to stop calling committed gay couples "domestic partners" and start calling them "married."

So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I’ll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority–a likelier prospect than a strong conservative majority–on the U.S. Supreme Court.

First, the California court’s 121-page opinion was dishonest. This was most evident in its ritual denial of the fact that it was usurping legislative power: "Our task … is not to decide whether we believe, as a matter of policy, that the officially recognized relationship of a same-sex couple should be designated a marriage rather than a domestic partnership … but instead only to determine whether the difference in the official names of the relationships violates the California Constitution [emphasis in original]."

This was a deeply disingenuous dodge, if not a bald-faced lie, to conceal from gullible voters the fact that the decision was a raw exercise in judicial policy-making with no connection to the words or intent of the state constitution. It is inconceivable that anyone but a supporter of gay marriage "as a matter of policy" could have found in vague constitutional phrases such as "equal protection" a right to judicial invalidation of the marriage laws of every state and nation in the history of civilization.

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Supremes Whack World Court – and Bush

by Stuart Taylor, Jr.

National Journal

It’s not every case in which the Bush administration is aligned with the World Court, human-rights groups, the American Bar Association, the European Union, other death-penalty opponents, and a vicious murderer now sitting on death row against Bush’s home state of Texas and tough-on-crime groups.

Nor is it every case in which Bush-appointed Chief Justice John Roberts and his four most conservative colleagues (plus liberal John Paul Stevens) rebuff the president for making an excessive claim of presidential power.

That’s what happened on March 25, in Medellin v. Texas, a complex but fascinating case that has become a global cause celebre. The Supreme Court ruled 6-3 that neither the World Court nor the president could require Texas courts to give the murderer, a Mexican national named Jose Ernesto Medellin, a new hearing on whether he was denied a fair trial by the state’s violation of his right under a multilateral consular treaty to seek help from the Mexican consulate after his arrest. Texas courts have refused because Medellin’s attorney did not raise the state’s violation of the Vienna Convention on Consular Relations in his trial or initial appeal.

The Court issued two important rulings: 1) U.S. courts may not use vague treaty provisions to override state or federal laws without explicit authorization from Congress, a point on which Bush agreed; and 2) The president lacks the sweeping and unprecedented power that he claimed unilaterally to require judicial enforcement of such vague treaty provisions.

The Court was right on both points, in my view. But the decision, widely denounced by internationalists, does carry heavy costs. As Roberts acknowledged, it may hurt relations with foreign governments, may be seen as undermining the nation’s "commitment to international law," and may make it harder for Americans arrested abroad to get access to U.S. consular officials.

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Opening Argument – Don’t Do a 5-4 This Time

by Stuart Taylor, Jr.

National Journal

Sometimes it is more important to avoid looking like a bunch of political partisans than it is to reach the most legally sound result.

That was true in the case of Bush v. Gore. The U.S. Supreme Court decision ending the 2000 election litigation and handing the presidency to George W. Bush was legally defensible. But the 5-4 conservative-liberal split — plus a sloppily written majority opinion — left many Americans believing that the justices were grinding partisan axes. It would have been wiser to punt the case to Congress, or to give the Florida Supreme Court one more shot at a recount while rebuking its apparent effort to rig the rules for Al Gore. (See NJ, 1/6/01, p. 8.)

Now comes what The Washington Post calls the Court’s "most politically divisive case since Bush v. Gore." On January 9, the justices will hear arguments on whether Indiana’s 2005 law requiring voters to show government-issued photo identifications at the polls is an unconstitutional burden on voting rights designed to hurt Democrats.

Republicans defend the measure — the strictest of the more than 20 state laws tightening voter-ID requirements since 2000 — as a safeguard against voter fraud. Most Democratic voters also support strict voter-ID laws. But almost all Democratic politicians and legal experts want such laws struck down.

Lower-court judges have also divided along glaringly partisan lines. When a panel of the U.S. Court of Appeals for the 7th Circuit upheld the Indiana law, two Republican appointees out-voted Clinton-appointed Judge Terence Evans. Then the full 7th Circuit’s two other Democrats (plus one Republican) joined Evans in voting to rehear the panel’s decision while the five other Republicans backed the panel majority. Similarly, in 2005, the Michigan Supreme Court’s five Republicans upheld a new voter-ID law over dissents by the two Democrats.