The Judiciary

About our courts

One major campaign issue last year was the need to improve our federal courts. I wrote about this subject several times on this blog. Approaching the first quarter of the Obama presidency, his scorecard is tepid and disappointing.

On Jan. 20, 2009, the new president inherited 55 vacancies on the federal courts, which would be understaffed if all the seats were filled. As of Nov. 30, 2009, there were 98 vacancies, 20 on the circuit (appellate) courts and 78 on the district (trial) courts.


State secrets

The Obama administration just doesn’t get it. Questioned from day one how it planned to handle prior administrations’ state-secrets policies in light of its proclaimed commitment to openness and transparency, it repeatedly missed opportunities to assure meaningful reform. The latest so-called reform measure reportedly sets up a review process in the Justice Department to scrutinize claims of state secrecy in litigation.


Contempt of court

When court orders are disobeyed or trial participants misbehave, judges invoke their historic power of civil contempt. They summarily imprison the culprit until he or she does what they were ordered to do. The rationale is that the prisoner has the key to the prison door, and can be released by conforming to the court’s order. The power is supposed to be remedial, not punitive.

The idea makes sense. How could any government body operate without the power to control its own proceedings? The problem is that every so often someone is adamant and ends up summarily incarcerated in prison for egregiously long, sometimes indefinite periods. The case of Susan McDougal in the Clinton era drew attention to this phenomenon. She refused to testify before the Whitewater grand jury and languished in jail over a year. In her notorious custody battle, Dr. Elizabeth Morgan was imprisoned for 25 months for refusing to tell where her daughter was secreted.

Bullying Sotomayor

One thing is certain after the confirmation hearings this week for Judge Sonia Sotomayor — there is no way she can explain, defend or recant her "wise Latina woman" comment. She called it a "rhetorical flourish" that fell flat, and she said it was wrong and on and on, but the point is she said it numerous times in numerous speeches and she meant it. Enough said.

That aside, why did Sen. Lindsey Graham (R-S.C.) — after admitting she would be confirmed barring a meltdown, and that he himself could possibly support her — have to treat her so badly?

The Sotomayor Hearingzzzz

With the Senate Judiciary Committee questioning of Judge Sonia Sotomayor over, a topic talked about almost as much as "wise Latina" comments has been about why the hearings have been so, well, boring.

There are few responsibilities a senator has that are of more long-term reach than deciding on a Supreme Court nominee. One seat on the Supreme Court can change the court's nature for a generation or more.

The ‘Activist’ Court

OK. I am not, nor have I ever been, a lawyer. I took Constitutional Law in college just a few short years ago — 40, maybe — and I don’t devour Supreme Court cases, judiciously reading the footnotes and the footnotes to the footnotes.

So, you ask, why do I feel compelled to comment on the latest Ricci case? I am not going to discuss Title VII or the lower-court rulings or the effect on Judge Sotomayor’s appointment to the Supreme Court. Rather, I have another angle.

Sotomayor is No Reverse Racist

The following appears originally in The Washington Times of Monday, June 15.

By now, most people have heard — negatively — about the 2006 case Ricci v. DeStefano, in which 18 New Haven firefighters (17 white and one Hispanic) were not promoted after passing the required tests because there were no blacks whose test scores were high enough to qualify them for promotion.

Law and Literature

Long a believer in and advocate of alternative sentencing, I am bemused by the recent creativity of one federal trial judge.

District of Columbia Judge Ricardo Urbina ordered a pharmaceutical executive convicted of making a false statement to government investigators about his company’s actions in a patent dispute to write a book in lieu of being sentenced to prison.

Stop Whining About Sotomayor

Senate Republicans are turning everybody off with all their whining about the timetable for Sonia Sotomayor’s confirmation hearings.

No sooner had Judiciary Committee Chairman Patrick Leahy (D-Vt.) set July 13 as the date for her first hearing than Mitch McConnell (R-Ky.), Jeff Sessions (R-Ala.), Tom Coburn (R-Okla.) and Jon Kyl (R-Ariz.) started sobbing about needing more time. “We’d have to read 76 cases a day to review her entire judicial record by that date,” they complained.

No Surprise on Quotas

According to a new Quinnipiac University poll, most U.S. voters strongly disagree with Sonia Sotomayer’s position on the New Haven, Conn., firefighters case.

This comes as no surprise to me, and as faithful readers of this blog will attest, last week I plotted a strategy to make the most of this real GOP advantage.

Of course, that strategy was overwhelmed by the idiotic discussion, led by that brilliant Republican strategist Rush Limbaugh, who called the Hispanic Supreme Court nominee a “racist.”