The Judiciary

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.

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.

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.

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.

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.

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.

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.

Judging Lawyers by Their Clients

In a recent press review of New York Sen. Kirsten Gillibrand’s (D) role as a young attorney representing tobacco companies, one law professor was quoted as saying that it would be unfair to assess lawyers by whom they represent. “Nobody would want to live in a world in which lawyers are judged by the clients they take,” he suggested. Indeed, that it is an article of faith among most lawyers, and mostly a devious one, in my judgment.

Guns and Courts

It is rare that I find myself in agreement with prolific jurisprudential gadfly Judge Richard Posner, though he is always interesting and provocative. Indeed, he is so prolific that I speculate there really is no one Richard Posner, but a basement full of Posner scholar-elves who, like Santa’s helpers, grind out countless articles, reviews, decisions and books. But to my surprise, I do agree with his interesting critique, in a recent issue of The New Republic, of the United States Supreme Court’s decision in District of Columbia v. Heller, the recent gun control case.

The Second Amendment states that “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Before Heller, the Supreme Court ruled four times — in 1875, 1886, 1894 and 1939 — that the amendment restricts the national government’s powers over state militias, but does not assure people the personal right to bear arms. Even conservative jurists — the late Justices Lewis Powell and Warren Burger, for example — have said that the Second Amendment does not ban reasonable gun controls nor assure an individual right to bear arms. Despite those precedents, and the escalation of gun violence to shocking levels, gun advocates have effectively fought against all controls. Politicians who support modest, rational gun controls, which the majority of the public approves, have suffered for their advocacy.

Scalia's Wrong Interpretation of the Second Amendment

Justice Antonin Scalia believes in the theory of originalism. In other words, he believes the Constitution is a dead document, intended to reflect things the way they were in 1787 and never to change.

Unfortunately, Scalia had a chance to apply that theory by leading the Supreme Court in overturning the city of Washington’s ban on handguns. For Scalia and four other conservatives on the court, if militia in colonial times could have a musket in their home, then men today can have an automatic killer pistol in their home.

How simplistic. How wrong. How dangerous.