The Judiciary

The Supreme Lightness of Meaning

Those of us who enjoy being pretentious are quoting Aristotle, who criticized the law as "mind without reason.”

Step aside, Aristotle. Make way for Barack Obama. In announcing his nomination of Sonia Sotomayor for the Supreme Court, he borrowed from Oliver Wendell Holmes, to many the supreme Supreme Court Justice. Holmes contended, “The life of the law has not been logic, it has been experience. It is vitally important that a justice know how the world works, and how ordinary people live.”
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So Much for Subtlety

For Republicans to do well in the fight over President Obama’s pick for the Supreme Court, they needed to employ a careful, well-calibrated strategy that would raise important questions about the nominee’s qualifications and judicial philosophy without alienating critical swing voters, especially independents and Hispanics.

What they got were Rush Limbaugh and Newt Gingrich.

Rush called Sonia Sotomayor a racist — no, let me soften that, a reverse racist.
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Justice Souter, the Last Yankee

Much has been made about the retirement of David Souter from the Supreme Court a few weeks back, and a great deal more about the appointment of Sonia Sotomayor. He was considered odd by the mainstream because he didn’t do lunch or watch TV; because he drove a reasonable car (if he drove at all); because he lived in a modest shack up in the hills that would have suited Henry David Thoreau. Although The New York Times found him quaint.
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Confirming Judge Sotomayor

During the past presidential campaign I wrote several times that the key issue for the next administration would be court appointments. It didn’t take long into the Obama administration for that point to be made quite clear.

The nomination of appellate court Judge Sonia Sotomayor, a brilliant, accomplished and colorful choice to replace Justice David Souter, will clear Senate confirmation, no doubt. No doubt, as well, Republicans and their media cheerleaders will harp and complain about some feature of Judge Sotomayor’s career, forgetting they lost the election, ignoring the preposterous Harriet Miers nomination of their last president and looking for anything to complain about, no matter how farfetched.
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Parting Shot

I was in the East Room of the White House on Tuesday when President Obama announced his choice to replace Justice David Souter on the Supreme Court.

She is Judge Sonia Sotomayor, whom the president called an “inspiring woman” who proves that “no dream is beyond the reach of any American.”

First, and most importantly, she is eminently qualified for the Supreme Court. She was both a district attorney and corporate litigator. She was named to the federal bench by the first President Bush, and elevated to the Appeals Court by President Clinton. She’s already been confirmed by the Senate twice.
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State-Sponsored Discrimination and the Supreme Court Nominee

Republicans won’t stop the president from appointing Sonia Sotomayor from being the next Supreme Court nominee.

The media is already warning Republicans not to anger Hispanic voters by opposing her nomination.

And there is some political risk in opposing Ms. Sotomayor. Republicans need to be cognizant of that risk.
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Another Way to Consider Torture

One of the flip responses I sometime make about whether or not I’m in favor of capital punishment is that I am, if I can choose who gets it.

There is a serious idea behind the flippancy: Most people can think of someone they’d like to see receive the ultimate punishment — Hitler, say. But this is a slippery logic. If you can imagine it fits for one person, the idea is sound, and only the application is subject to debate. And, akin to that logical notion is a constitutional theory that some liberal thinkers ascribe to: that civil liberties protections are designed to protect deplorable people — good citizens rarely need such protection.
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Supremely Surprising

As all-powerful as the U.S. Supreme Court has been in shaping our society, it is usually ignored by we the people whose actions are controlled by its interpretations of the rules. In large part, that's due to media indifference to any story that can't be told in news snippets.

Only when it deals with abortion or when it helps steal a presidential election do we pay attention. Or when someone leaves the court.
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Top Dems Change Tune — And History — on SCOTUS Filibusters

With Democrats in control of the White House and both chambers of Congress, Senate Democrats are coming out against a filibuster for whomever President Obama nominates to the Supreme Court. Going one step further, key Democrats are denying their own support of the filibuster on all sorts of judges — from district to appeals courts to the highest court in the land.

On Sunday, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) told ABC's "This Week" that “we never filibuster Justices of the Supreme Court.” In fact, Leahy himself supported the filibuster.
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SCOTUS and Median Voter Theory

As many commentators have already pointed out, the replacement of David Souter is unlikely to alter the nature of future Supreme Court decisions. The Supreme Court, as opposed to the United States Senate, operates strictly by majority rule, which means the jurist who occupies the median vote on the nine-member bench exercises an inordinate amount of power, particularly on divisive cases.

Justice Kennedy, the current king of the median vote (previously occupied by Justice O’Connor) can swing almost any controversial decision by making sure he sits in the middle of a decision. He can do that because Supreme Court decisions are a multi-stage process full of negotiations and compromises.
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