Jeff Sessions is all about Wisconsin

Alabama legislator outlaws Sheepshead*
Only Abraham Lincoln lost more elections than Wisconsin judge

A few gems from the brain of Jefferson Beauregard Sessions III, distinguished Senator from Alabama and rank(l)ing Republican member of the United States Senate Committee on the Judiciary.

The committee yesterday once again considered the nomination of Louis Butler to the federal court for the Western District of Wisconsin and once again voted to confirm 12-7, on political party lines.

In his remarks, Jeff Sessions opined that Louis Butler's pernicious influence turned the Wisconsin Supreme Court into "perhaps the most activist federal court in America."

Item: Obviously the Wisconsin Supreme Court is not a federal court.

Jeff Sessions called Judge Diane Sykes** a "former Wisconsin Supreme Court justice and current 11th Circuit justice."

Item: Judge Sykes is on the 7th Circuit, which sits in Chicago, with jurisdiction over Wisconsin. The 11th Circuit is in Atlanta, with jurisdiction over the Okefenokee Swamp (and Jeff Sessions).

Item: The only "justices" in the federal system are the nine in Washington, D.C. All of the others are "judges."

Finally, Jeff Sessions quoted from Art. I, Sec. 25 of the Wisconsin constitution thusly: "Quote, 'the right to keep and bear arms for security, defense, hunting, recreation or any other unlawful purpose,' closed quote."

Item: All recreational activity in Wisconsin is hereby deemed illegal.

And Jefferson Beauregard Sessions III said all of these things within the space of about three (III) minutes.

To sum up: Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee who is leading the charge of the dim brigade against Louis Butler, does not believe Butler, who has been a municipal court judge, a circuit court judge, and a State Supreme Court justice in Wisconsin for 16 years, is qualified to be a judge.***

Whereas Sessions is barely qualified to speak into a microphone.

* Excepting those players armed with a 30-aught-six.

** Why didn't Sessions mention Judge Sykes's forceful affirmation of Justice Butler's ethical integrity? Because Sessions is ultimately a political scam artist with very little knowledge of what he speaks.

*** Butler has received the American Bar Association's highest rating, the same accorded both John Roberts and the recently offended Samuel Alito, who, incidentally, was taken aback because President Obama paraphrased a couple of remarks from Justice Stevens's dissent in Citizens United v. Federal Election Commission.

From whence the shock? Had he not read it? He must have. Because he signed on to Justice Scalia's gratuitously sarcastic concurring opinion. Those are the type of guy that Jeff Sessions loves so well.

Over one thousand law professors*

Always, Leah.

One thousand law professors, including two from Marquette University in Milwaukee, sent a letter of support for Sonia Sotomayor to Patrick J. Leahy and Jefferson Beauregard Sessions III, respectively the chairman and the ranking Republican on the Senate Judiciary Committee:

As a federal judge at both the trial and appellate levels, Judge Sotomayor has distinguished herself as a brilliant, careful, fair-minded jurist whose rulings exhibit unfailing adherence to the rule of law. Her opinions reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the text of statutes and the Constitution. She pays close attention to precedent and has proper respect for the role of courts and the other branches of government in our society.

True dat. A perfect example following.

Speaking of Jefferson Sessions, he appeared on the Fox News Channel yesterday complaining about Sotomayor's attitude toward the Second Amendment. Sessions whined that Sotomayor doesn't think that keeping and bearing arms are fundamental rights.

It's a stupid and inflammatory thing to say outside of its proper legal context. But obviously it's Sessions's game to misinform and inflame his constituents.

In constitutional law, "fundamental right" is a term of art that derives from decisions by the Supreme Court on whether or not to incorporate provisions of the Bill of Rights to restrict the actions of State and local governments. Those provisions must be found to contain fundamental rights before they can be incorporated.

The fact of the matter is, the Supreme Court has never incorporated the Second Amendment and States remain empowered to regulate weaponry beyond the Amendment's restrictive reach, as it only applies to the federal government's jurisdiction.

Don't believe me, ask Frank Easterbrook.

So it's true that the United States Supreme Court has yet to rule that the Second Amendment contains fundamental rights and Sotomayor, in her official role as a member of one of the subordinate federal courts, was entirely correct in following that precedent.

Moreover, if Senator Sessions is not aware of the several active petitions to the Supreme Court asking it to incorporate the Second Amendment, then he is clearly in the wrong line of work.

Sessions criticized Judge Sotomayor for allegedly holding that the foregoing is a matter of "settled law," and claimed that he wasn't so sure about that. Sessions was presumably referring to a recent decision of the Ninth Circuit Court of Appeals which held that the Second Amendment does indeed apply to the States (at least, those nine States within the Ninth Circuit, and Guam).

But that decision came after Sotomayor's Second Amendment opinions and anyway, the Ninth Circuit has little to do with the Second Circuit in terms of precedent. So yes, as far as Sotomayor's decisions go, it was and is a matter of settled law. End of story.

It's also amusing that Sessions is implying that Sotomayor hasn't been activist enough, and doubly amusing that he's telegraphing his desires that Sotomayor would defer to the Ninth Circuit, of all things, one of the archetypal conservative Republican bugaboos.

Only when convenient, as usual.

Not that the average Fox News enthusiast/Bill-O fan would be aware of any of this — or even care, probably — and not that Jefferson Sessions would be honest enough to explain it to them, of course.

That's far too much to expect of this transparent politician.

* This should be "more than" one thousand law professors.

Sessions needs more time to grandstand

At the request of Republicans, the Senate Judiciary Committee postponed a planned vote Thursday on the confirmation of Indiana Judge David Hamilton to serve on the 7th U.S. Circuit Court of Appeals.

Senator Jeff Sessions (R-AL) singled out Hamilton's 2005 ruling that prayers said at the start of Indiana House sessions must not mention Jesus Christ or advance any religion.

This is a "troubling" ruling, says Jefferson Beauregard Sessions III, who's only had IX-1/2 short weeks to examine it.

Judge Hamilton was reversed not on the merits or on his reasoning but on the question of the plaintiffs' legal standing to sue.

As discussed here previously, the 7th Circuit Court of Appeals had initially agreed with Judge Hamilton that the plaintiffs had standing to proceed, and the 7th Circuit in effect overruled itself in light of a decision of the U.S. Supreme Court in another case dealing with Establishment Clause standing that appeared in the meantime.

In short, we don't know whether Judge Hamilton would have agreed with the Court of Appeals that the interim SCOTUS decision had a bearing on Hamilton's 2005 ruling, nor do we know whether the Court of Appeals would have affirmed Judge Hamilton on the merits had the plaintiffs been able to maintain their standing to proceed.

So, not a sufficiently complete record to get all "troubled" over.

Rather, this is about the gentleman from Alabama's attempts at even greater heights of inanity as the committee's ranking Republican than he managed to scale during his tenure as a journeyman posturer.

Troubled Sessions is troubled

Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could've changed that case.

— Jeff Sessions

Ah, but Judge Cabranes is only a Wise Latino, not a Wise Latina. Besides, Judge Cabranes was only voting to rehear the New Haven firefighters case, not to change anything about it. Who knows, he may have affirmed Sotomayor. Anyway, it isn't even clear whether Sotomayor could have changed the decision below, let alone an en banc rehearing, as she was part of a unanimous three-judge panel. She could have dissented there,* but two is greater than one.

Nevertheless: Sessions remains troubled

That's for sure.

* In which case, or course, she would have been accused by Senate Republicans of favoring "empathy" over federal law.

Ricci, don't use that number

For some reason, Senate Republicans have retained New Haven, CT firefighter Frank Ricci to testify against Sonia Sotomayor this week.

Writes Dahlia Lithwick:

Ultimately, there are two ways to frame Frank Ricci's penchant for filing employment discrimination complaints: Perhaps he was repeatedly victimized by a cruel cadre of employers, first for his dyslexia, then again for his role as a whistle-blower, and then a third time for just being white. If that is so, we should all be deeply grateful for the robust civil rights laws that protect Americans from unfair discrimination in the workplace. I look forward to hearing Republican Sen. John Cornyn's version of that speech next week.

The other way to look at Frank Ricci is as a serial plaintiff—one who reacts to professional slights and setbacks by filing suit, threatening to file suit, and more or less complaining his way up the chain of command. That's not the typical GOP heartthrob, but I look forward to hearing Sen. Cornyn's version of that speech next week as well.

More to the point:

His views on jurisprudence seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don't.

Kind of like the classic Republican take on "judicial activism" — you got your bad kind (liberal) and you got your good kind (conservative).

So that's why Republicans are parading Ricci: He's one of them.

In today's Milwaukee Journal-Sentinel, the Senate Judiciary Committee's ranking Republican Jefferson Beauregard Sessions III rails petulantly* against "empathy," but then highlights the fact that Ricci has a learning disability, thus collapsing his entire argument.

This could well be a very embarrassing week for Senate Republicans. My impression is that Sotomayor is smarter than all the Republicans on that Committee put together, and will probably encounter the most probing, substantive questioning from the Democrats.

For example, compare Sessions's crybaby talk with Russ Feingold's intended focus. It's obvious who the grownups are this time around.

Because a sideshow is about all the GOP can hope to bring.

* While completely ignoring her 16-year record as a federal judge, likely because it contains zero evidence for Sessions's gravest fears.

Shorter Jefferson Beauregard Sessions III

'Justice Butler, I couldn't be bothered actually reading any of these Wisconsin Supreme Court opinions of yours interpreting Wisconsin law, but could you explain to me how come this one law professor guy in Baltimore who you probably never even heard of didn't like them?'

'Also, why did you lose an election by 51 to 49, a two-to-one margin?'

I guess they don't call him The Ranking Member for nothing.

I don't know whether or not I should be surprised by a United States Senator from Alabama attempting to initiate a discussion on the opinions of a Wisconsin court he hasn't even read. Probably not.

Senator Sessions might consider engaging in some research beyond simply skimming the editorial page of the Washington Moonie Times.

If he's too busy, then maybe resist making himself appear foolish. The Milwaukee Journal-Sentinel calls Jefferson B. Sessions's inquiries "pointed." I call them embarrassing and woefully ill-informed.

Which is sort of the opposite of pointed.

More seriously, I was pleased to hear both Justice Butler and Senator Russ Feingold make reference to a fact that was raised at this space one month ago, that Butler won the aggregate vote in the 44 counties which comprise the federal Western District of Wisconsin.

Well played, gentlemen. Ditto to Senator Patrick Leahy for making the record that the other contestant in the referenced election remains accused by the Wisconsin Judicial Commission of lying.

Jeff Sessions, defender of the Constitution*

There has never really been a filibuster of a judicial nominee in the Senate until now, when our Democratic colleagues have decided to change the ground rules on confirmation. They have said so and done so openly, and seem to be little concerned that the Constitution may be violated in the process.

— Sen. Jefferson Beauregard Sessions III** (R-AL), 07/25/03

So you'd never guess who led yesterday's failed attempt in the U.S. Senate at filibustering the nomination of Judge David F. Hamilton to the Seventh Circuit Court of Appeals: the principled Jeff Sessions.

Hypocrites also figure prominently in the Gospel of Matthew.

* So long as there's a Republican in the White House.
** Not by any means a member of the nation's elite.

Sessions expresses sympathy for empathy

The newly minted ranking Republican on the Senate Judiciary Committee says he "probably" won't try to filibuster Obama's as-yet-unnamed Supreme Court nominee:

Jefferson Beauregard Sessions III said the president assured him that he was not going to nominate a "bomb-thrower."

But I think we knew that already. The Supreme Court already has a couple of bomb-throwers in Associate Justices Scalia and Thomas.

The former thinks decisions of the Court can cause Americans to be "killed," and the latter says students can't have any First Amendment rights because they were regularly flogged during the 19th century.

Both of them believe journalist Roxana Saberi, currently imprisoned in Tehran for "espionage," is now a felon for purposes of U.S. law.

New York Times.

J-S prints some crap by Jeff Sessions

Educator Jay Bullock explains, with citations.

Earlier: Jeff Sessions is all about Wisconsin

Beauregard's Bibliolator Boykin bounced

Monday's Republican circus is off to a flying start:

"Although General Boykin’s prior comments concerning the war on terror are unrelated to his scheduled testimony on Dean Kagan’s nomination, it is clear that these comments would be used to distract from the very important issues surrounding Ms. Kagan’s actions at Harvard Law School," said Stephen Boyd, a spokesman for ranking member Sen. Jeff Sessions.

Nice try, Sessions.

Oh well, he's still got Tony Perkins and Ed Whelan.

Elena Kagan slams Thurgood Marshall

"To be a results-oriented judge is to be the worst kind of judge that you can be." — U.S. Supreme Court nominee Elena Kagan

Let's see if Jeff Sessions is bright enough to pick up on that. If I was a Republican on the Committee, I'd be all over it like a cheap suit.

eta: Nope, Sen. Sessions just kept on barreling down his DADT blind alley, the proverbially unarmed man turning up for a battle of wits.

Another Volokh conspiracist

Some time ago, after I'd obtained my law degree, I had lunch with one of my professors, who I kept calling, "Professor."

"Will you please stop calling me 'Professor,'" he said. "We're colleagues now." "I can't help it," I replied, "I have too much respect for the legal academy's knowledge, wisdom, and objectivity."

"Well then," said he, "obviously you haven't met enough of us."

This time around, meet Prof. Randy Barnett:

One of the things we hope to learn during confirmation hearings is a nominee's approach to the constitutional protection of liberty. But in her exchange with Sen. Orrin Hatch (R-Utah) about the second amendment and its potential application to the states, Sonia Sotomayor revealed remarkably little about her understanding of how the Supreme Court protects liberty under the fourteenth amendment. For example, more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment. But this gets it backwards. The Supreme Court incorporates a right BECAUSE it finds it to be fundamental.

I was paying particular attention to Judge Sotomayor's Second Amendment exchange with Orrin Hatch, and have written about these questions here before on several occasions.

It's true that in constitutional law, provisions of the federal Bill of Rights are deemed to apply to State and local governments — incorporated — after a finding that they are "fundamental."

That's the process, in chronological order.

By the same token, once rights have been incorporated, there's nothing wrong with saying they're fundamental, in the constitutional sense. But that's not the same as claiming that rights become fundamental by dint of their incorporation.

What Prof. Barnett is charging is that Sotomayor thinks rights are fundamental only because they've been incorporated.

During the opening moments of her exchange with Senator Hatch, Judge Sotomayor responded:

It's not that I considered [the right to keep and bear arms] unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the State.

"Fundamental, so as to be incorporated." Exactly right. In fact, I can't think of a way to put it any more succinctly.

Sotomayor is referring to her decision in Maloney v. Cuomo and with "Supreme Court" she's referencing D.C. v. Heller. Seems pretty clear to me, that finding the right to be fundamental precedes a determination of incorporation, which is what Sotomayor said.

Prof. Barnett's proffered "evidence" for his allegation:

Here is her characterization of a "fundamental right":

SOTOMAYOR: Those rights have been incorporated against the States. The States must comply with them. So in — to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are — they have been deemed fundamental, as that term is understood legally.

And by "evidence" I mean, of course, "zero evidence."

[Edited to add, 07/16/09: Later in the hearings, presented with the same line of questioning, Judge Sotomayor said, "Fundamental, hence incorporated." So she did come up with an even more succinct means of expressing the procedural chronology after all.]

These folks are really clutching at straws here. But the worst offender continues to be Senator Jefferson Beauregard Sessions III, who has been bandying the expression "fundamental right" against Judge Sotomayor without any context whatsoever, in an attempt to make it look like she is opposed to the right to keep and bear arms.

There's no evidence of that either. In her Second Amendment rulings, Judge Sotomayor has carefully followed the precedent within the Second Circuit, which in turn is driven by Supreme Court case law.

Any suggestion by Sessions and others that she should have done otherwise is an expression of desire for "judicial activism."

GOP priorities, a demonstration

The Washington Moonie Times has an article about several of Obama's judicial nominees, which for some inexplicable reason includes a photo of Michael Gableman, who a three-judge panel unanimously found last month to have willfully violated* two separate provisions of the Wisconsin code of judicial conduct.

Now it seems a number of conservative Republicans in the U.S. Congress have expressed concerns over our former State Supreme Court Justice Louis B. Butler, Jr., who was a judge for 16 years but during which time was never once found by anybody to have violated any provisions of the Wisconsin code of judicial conduct.

Many thanks again, Republicans, for insulting our intelligence, and not least for characterizing the "antipathy toward Christianity" of Seventh Circuit Court of Appeals nominee Judge David F. Hamilton, whose father is a retired United Methodist minister in Indianapolis.

You all are truly scientific political geniuses.

Earlier: Jeff Sessions, defender of the Constitution.

* He may or may not be in the process of escaping responsibility through — ironically — a loophole. It yet remains to be seen.

Where's Feingold

Kohl will continue support for Butler — WI State Journal

Jeff Sessions's bullshit doesn't qualify as "Advice."

"Carried ... Fitz first."

Recall Senate Majority Leader Republican Scott Fitzgerald:

Scott Fitzgerald presided over at least two legislative sessions that we believe violated Wisconsin’s open meetings laws, and he coordinated the most egregious case of partisan gerrymandering our State has ever seen.

Yep.

Sessions needs another week to think about "No"

Jefferson Beauregard III is not exactly the brightest of bulbs.

Bloomberg: Elena Kagan committee vote held over to next Tuesday

Openly gay justice

Politico.com reports that some groups are lobbying Obama to nominate an openly gay Supreme Court Justice. Given that the U.S. Supreme Court is the country's highest profile affirmative action battleground — and the only place nobody seems to complain* about it — it's not any more or less remarkable than lobbying for a black woman, an Asian, or an atheist.**

The openly gay nominee they have in mind is Kathleen Sullivan, a Stanford University law professor who notoriously failed the California bar exam in 2005. It was an insignificant blip in an otherwise impressive career, but for some Republicans on the Senate Judiciary Committee, it would be mouthwatering red meat.

I'm thinking particularly of Oklahoma's Tom Coburn, a physician who is baffled by legal terminology and who attempted to get now-Chief Justice John Roberts to stipulate that mentioning foreign law is an impeachable offense under the United States Constitution.

Roberts refused to, obviously.

Speaking of the Senate Judiciary Committee, where Arlen Specter was the ranking member, the Republicans are reportedly set to announce his replacement on Tuesday.

Orrin Hatch of Utah is the next most senior GOPer. Hatch has already had a few kicks at the can, and term limits prevent him from taking the job again. After Hatch comes Iowa's Charles Grassley, but he is already the ranking member on the Senate Finance Committee, and you can't retain that status on two committees.

Which leaves us in the company of the comically petulant Senator from Alabama, Jefferson Beauregard Sessions III. As the Recess Supervisor puts it, "God help us." I say, bring him on.

* Except for, ironically, Clarence Thomas.
** Fat chance of the latter, although it would provide for the most entertaining Senate committee hearing of all times.

GOP attempts a two-car funeral

And finds it hard to organizize.

When the vehicles are Newt Gingrich and Sarah Palin:

Chairman Pete Sessions was concerned about not wanting to upstage former House Speaker Newt Gingrich, the fundraising gala's keynote speaker.

Probably because she might steal his speech, also.

Strict obstructionists

Obama tries to shake out his judicial nominees:*

As a former Senator, I have the greatest respect for the Senate's role in providing advice and consent on judicial nominations. If there is a genuine concern about the qualifications of judicial nominees, that is a debate I welcome. But the consistent refusal to move promptly to have that debate, or to confirm even those nominees with broad, bipartisan support, does a disservice to the greatest traditions of this body and the American people it serves.

It's hard to read "the Honorable Jeff Sessions" without gagging.

* Not that it will do the slightest bit of good.

Gableman remains less than beloved

Now Wisconsin is stuck with a lying, unprincipled justice serving a 10-year term on its state Supreme Court.

Joel McNally doesn't exactly mince words, does he.

His frustration is in large part justifiable, however.

By the way I don't believe the biggest objection to Goodwin Liu was his Berkeley law professorship — although that was probably enough for partisan buffoons like Jeff Sessions — but rather some incendiary remarks he delivered at Justice Samuel Alito's confirmation hearing.

On the other hand, we are expected to separate a prospective judge's political rhetoric from her ability to render impartial dispositions, but that is not the standard Republicans are espousing in Prof. Liu's case.

Their hypocrisy is strong.

One more by the way. Here is our old friend Rick Esenberg:

No, I don't think [Louis Butler] lost because of the Reuben Mitchell ad. It actually may have helped him.

But of course, it's always helpful to one to be publicly accused of being deliberately complicit in the sexual assault of a child.

I presume what the professor meant to say is that Gableman's own admittedly deliberate and carefully considered accusation may have been a quantitative electoral detriment to his political ambitions, but that is hardly the same thing as it being helpful to Louis Butler.

The truth is, such false and scurrilous accusations help nobody.