ConfirmThem

Posted at 6:32pm on Sep. 17, 2009 Constitution Day

By AndrewHyman

John Vile put it this way:

Whereas officers in some dictatorships pledge personal allegiance to their leaders, American officers, like the President himself, pledge first and foremost to uphold the Constitution of the United States. In this way, they affirm that the rule of law is superior to the rule of a human leader.

Well said.

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Posted at 7:32am on Sep. 14, 2009 Open Thread

By AndrewHyman

I just re-wrote the blurb at the top right of the page ("ABOUT CONFIRMTHEM").

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Posted at 11:21pm on Sep. 4, 2009 Underneath Their Robes

By AndrewHyman

There's some discussion at the end of this September 3, 2009 video about attire of the female justices. It probably wouldn't matter much if the justices were to show up in transparent robes (or birthday suits), but still there's some merit in plain black robes without frills. That tradition of plain black robes without frills was introduced by Chief Justice John Marshall, and Chief Justice Roberts has explained the reason:

[J]udges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision.

This is not a huge issue, of course, but the tradition seems wise. If male justices have a low collar that allows them to show off their neckties underneath the robes, then female justices can put on something underneath their robes that also is visible with the same low collar. The robe itself ought to remain plain black, per Marshall and Roberts and every chief justice in between (except for Rehnquist who was "jealous of the Court's female justices" who had broken with tradition). Is an outfit grounds for impeachment? Probably not. But Judge Patricia Wald has the right idea:

“[t]he black robes we wear on the bench unite us in their lack of distinguishability; they make a simple but striking point: We are neither Democratic judges nor Republican judges but, simply, United States judges.” ---Judge Patricia Wald

And Justice Stephen Breyer has a similar viewpoint:

“I have always thought that one of the reasons we wear black robes is that justice should be anonymous. The rule of law should be independent of the personality of the judge that happens to be hearing the case." ---Justice Stephen Breyer

Breyer is 100% right about this. Yes, I just agreed with Justice Breyer about something.

Hat Tip: Orin Kerr at Volokh Conspiracy.

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Posted at 12:03pm on Aug. 26, 2009 Open Thread

By AndrewHyman

Looks like this site was down for several days, but is back up now.

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Posted at 11:58am on Aug. 26, 2009 Remembering Eunice Kennedy Shriver and Ted Kennedy

By AndrewHyman

Ted Kennedy was a champion of civil rights for minorities, for which he generally deserves praise. He fought hard against both real injustice as well as perceived injustice, and (alas) supported unlimited use of judicial means to achieve policy ends. Both Ted and his sister Eunice carried on the inspirational and progressive legacy of their brothers John and Robert, who they now join.

Eunice Kennedy was a great champion for the disabled, and also for the unborn. While she had great success defending the former --- not so much the latter. In fact, judges deemed her traditional pro-life position so horrible that they forbade legislators from even voting for it. Sometimes the good die young, and sometimes they live to be old and accomplished, like Eunice.

The old song asks, "Didn't they try to find some good for you and me?" Eunice and Teddy did in their own different ways, and now they're walking up over the hill.

UPDATE: I would have much preferred that Eunice instead of Ted had been U.S. Senator from Massachusetts, for the reasons alluded to above, and also for reasons explained by Mark Steyn.

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Posted at 1:11am on Aug. 10, 2009 Schumer Said to Be Preparing Nuclear Option, Plus Cato Commentary About Sotomayor

By AndrewHyman

The Weekly Standard blog has a post titled, "Schumer Preparing for Nuclear Option to Ram Through Health-Care Bill." That blog post seems somewhat speculative, and Schumer hasn't explicity threatened it.

Meanwhile, Ilya Shapiro of the Cato Institute has some comments about the Sotomayor confirmation hearings. Here are some excerpts, with which I tend to agree:

All Americans should take pride in seeing our first Hispanic Supreme Court justice (not counting Benjamin Cardozo). While this moment should have belonged to Miguel Estrada—who was denied even a vote by an unprecedented Democratic filibuster—we should nevertheless celebrate Sonia Sotomayor’s rise from very humble beginnings to reach the highest court in the land....In walking away from so many controversial positions, Sonia Sotomayor established a new standard to which all future nominees will at least have to pay lip service. While confirmation was almost a foregone conclusion from the start because of the Democrats’ strong Senate majority, the Republicans played well the cards they had been dealt by engaging in a serious discussion about constitutional interpretation and jurisprudential philosophy.

Judicial opinions to follow.

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Posted at 11:38pm on Aug. 9, 2009 Open Thread

By AndrewHyman

Chat.

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Posted at 6:21pm on Aug. 9, 2009 Legitimacy of Justice Sotomayor's Appointment

By AndrewHyman

I suppose that some people (not me!) will now question Justice Sotomayor's legitimacy as a member of the Supreme Court, due to what they allege is President Obama's dubious eligibility. Here's what Andrew Sullivan wrote on July 29 about this:

It is our job to demand all the evidence we want or need. I know the electronic record is legit. I have no doubt that Obama has every constitutional right to be president. I think the Birthers are nuts. But there is no reason on earth that the original cannot be retrieved and shown. Jon Klein and CNN were wrong, and I retract my apology of yesterday. Obama promised total transparency. Where is it?

I agree with that statement by Andrew Sullivan entirely, even though he has since backtracked. On July 28, a news report in the Honolulu Advertiser stated:

One thing that remains unclear is whether Obama has a copy of the original 1961 Certificate of Live Birth, or if he would even be allowed to see it if he asked.

One would think that the American media would have sufficient resources to provide us with a simple answer to a simple question.

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Posted at 1:51am on Aug. 6, 2009 Sotomayor Confirmation Vote Will Probably Be Today

By AndrewHyman

Looks like Judge Sotomayor will be confirmed today by the Senate. Of the 40 GOP Senators, 31 oppose, eight support (Alexander, Bond, Collins, Graham, Gregg, Lugar, Martinez, and Snowe), and one has not announced (Voinovich). Click on the name of any of the GOP Senators for their explanations....

Alexander, Barrasso, Bennett, Brownback, Bond, Bunning, Burr, Chambliss, Coburn, Cochran, Collins, Corker, Cornyn, Crapo, DeMint, Enzi, Ensign, Graham, Grassley, Gregg, Hatch, Hutchison, Inhofe, Isakson, Johanns, Kyl, Lugar, Martinez, McCain, McConnell, Murkowski, Risch, Roberts, Sessions, Shelby, Snowe, Thune, Vitter, and Wicker.

UPDATE: The final vote was 68-31. Congratulations to Judge Sotomayor, who will become Justice Sotomayor on Saturday. I hope the Supreme Court agrees to hear the appeal of her decision in Maloney v. Rice, and reverses it. She opined in that case that the right to keep and bear arms is not a "fundamental" right, without citing any Supreme Court decision for that particular conclusion, and without giving any significant explanation. She was very well-spoken during her confirmation hearing, but her opinions in cases like Maloney and Ricci lead me to believe that her actual work on the Court will be considerably legislative. Here's hoping I'm wrong.

UPDATE #2: Here is the statement of Senator Voinovich, who was the last GOP Senator to decide.

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Posted at 2:36pm on Aug. 3, 2009 McCain To Vote "No" On Sotomayor Nomination

By AndrewHyman

Sen. John McCain's statement is here. It's a very thoughtful and persuasive explanation.

I've posted links to statements by other GOP senators here.

Hat Tip: Bench Memos.

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Posted at 11:42pm on Jul. 31, 2009 Yet Another Sotomayor Open Thread :-)

By AndrewHyman

Various GOP Senators have announced how they will vote on the Sotomayor nomination, and you can read their reasons: Alexander, Bennett, Brownback, Bunning, Burr, Chambliss, Coburn, Cochran, Collins, Corker, Cornyn, Crapo, DeMint, Graham, Grassley, Hatch, Inhofe, Isakson, Johanns, Kyl, Lugar, Martinez, McConnell, Snowe, Thune, Vitter, and Wicker.

By the way, last month I filed my very first brief in the U.S. Supreme Court.

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Posted at 7:55pm on Jul. 24, 2009 Sotomayor Open Thread

By AndrewHyman

Here's a new comment thread, i.e. some virtual real estate for you to develop. :-)

Do you think Senator Hatch is right? News reports say: "For the first time in his 33-year Senate career, Utah Sen. Orrin Hatch will vote against a Supreme Court nominee."

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Posted at 3:33pm on Jul. 12, 2009 Reminders About the Sotomayor Nomination

By AndrewHyman

This blog is obviously for supporting nominees, and since we probably won't be supporting confirmation of Judge Sotomayor, there's not much point in saying a whole heck of a lot here, especially before the hearings begin.

But, feel free to discuss the nomination in the comments section. I very highly recommend reading what Ed Whelan has had to say about the Sotomayor nomination. Following are some further links to relevant background material on Sonia Sotomayor, that I've plagiarized from the Federalist Society....

Nomination to the Supreme Court (2009):

Remarks upon the Announcement of Sotomayor's Nomination, May 26, 2009

Judiciary Committee Questionnaire, June 4, 2009

Supplement to Judiciary Committee Questionnaire, June 19, 2009

Letter from Judge Sotomayor, re: Belizean Grove, June 19, 2009

Nomination to the Court of Appeals for the Second Circuit (1997-1998):

Judiciary Committee Questionnaire, part 1, 1997

Judiciary Committee Questionnaire, part 2, 1997

Transcript from Judiciary Committee Hearing, September 1997

Nomination to the District Court for the Southern District of New York (1991-1992):

Judiciary Committee Questionnaire, 1991

Addendum to Judiciary Committee Questionnaire, 1991

Transcript from Judiciary Committee Hearing, June 1992

Other:

Judge Sotomayor's Nomination to the Supreme Court, Senate Judiciary Committee

"Reports on Judge Sotomayor's Record," SCOTUSBLOG, July 7, 2009

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Posted at 3:55pm on Jun. 8, 2009 Open Thread

By AndrewHyman

Comment away. :-)

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Posted at 8:40pm on May 27, 2009 Interesting Article by Charlie Savage

By AndrewHyman

Apparently, there were no litmus tests, for which President Obama deserves praise.

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Posted at 11:07am on May 26, 2009 On the Sotomayor appointment

By Feddie

My take on the appointment? She's the best of the worst. Judge Sotomayor will almost certainly be a reliably liberal vote on the hot-button social issues, but she's not going to play a leading role in shaping the jurisprudence of the Court (like Judge Diane Wood almost certainly would have done).

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Posted at 12:35pm on May 11, 2009 Big Second Amendment Case Coming Up

By AndrewHyman

See www.ArmsKeepers.org. I hope you all are enjoying Spring and Summer! Cheers.

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Posted at 8:02am on May 6, 2009 Kathleen Sullivan: SCOTUS or 9th Circuit?

By Curt Levey

The subplot to yesterday’s announcement that Michael McConnell is leaving the Tenth Circuit is that he will be replacing Law Professor Kathleen Sullivan as Director of Stanford’s Constitutional Law Center. It’s hard to imagine that the ultra-liberal Sullivan is happy about being replaced by the conservative McConnell. That leads me to speculate – until I hear otherwise – that either Sullivan was forced out or, more likely, that she anticipates leaving Stanford in the near future, probably for an appointment by President Obama. Sullivan could almost surely have secured a high-ranking position in the Obama Justice Department, but didn’t, so I’m guessing her interest lies with the federal bench.

The nightmare scenario is that Sullivan expects to be named to fill Justice Souter’s seat on the Supreme Court. She is often listed among the leading contenders. My guess is that President Obama is too much of a pragmatist to name Sullivan, who has been a leading advocate of gay marriage in California, to the High Court. In that case, she may well be anticipating appointment to the Ninth Circuit, where she’ll fit right in.

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Posted at 2:07am on May 2, 2009 Obama Sticks to his Activism Pledge

By Curt Levey

This was my advice to President Obama yesterday:

[N]ow would be a good time for you to clarify if you feel that you may have gone too far by endorsing judicial activism. For example, you could make it clear that you agree with Attorney General Eric Holder’s recent statement that ‘judges should make their decisions based only on the facts presented and the applicable law.’

I guess he wasn’t listening:

‘I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook,’ Mr. Obama said during an unscheduled appearance [yesterday] in the White House briefing room. ‘It is also about how our laws affect the daily realities of people’s lives.’

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Posted at 11:13pm on Apr 30, 2009 Justice Souter to Step Down?

By aurel

Reliable rumor has it that Justice David Souter, nominated by President George H.W. Bush but a reliable liberal vote on the Court, is intending to step down at the end of this term.

Story here.

Likely candidates for replacing Souter: Sotamayor, Kagen, Wood (in that order of likelihood).

Discuss below...

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Posted at 9:02pm on Apr. 20, 2009 Rethinking Impeachment

By Curt Levey

Adding to a growing chorus of left-wing whacko voices, Rep. Jerry Nadler (D – NY) called today for the impeachment of Ninth Circuit Judge Jay Bybee, who headed DOJ’s Office of Legal Counsel when it produced the “torture memos” released last week. Frighteningly, Rep. Nadler chairs the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. Said Nadler of OLC’s memos,

It was not an honest legal memo. It was an instruction manual on how to break the law.

What struck me is that if you change two words in Nadler’s description – “memo” to “opinion” and “break” to “subvert” – you have a perfect description of what the Supreme Court’s liberal justices do regularly when they write opinions in ideologically charged cases.

Assuming arguendo that the Nadler is right, any damage done to American law by Bybee’s memos has since been undone. Sadly, the same cannot be said of the damage done to the Constitution by liberal Supreme Court justices.

I’ve never supported impeaching judges for bad or even disingenuous legal reasoning – the charge against Jay Bybee. But if Nadler and his Democratic colleagues promise to apply such a standard even-handedly, I might be persuaded to change my mind.

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Posted at 8:33pm on Mar. 31, 2009 Levey/Shaw Debate in NYC Tomorrow

By Curt Levey

Civil rights icon Ted Shaw and I will be debating “The Future of Diversity Under Obama” tomorrow April 1 at noon and 6 pm in Manhattan. The evening debate at Clifford Chance will focus on racial and gender preferences in law firm hiring and promotion. The noon debate at Columbia Law School will focus on affirmative action in higher education.

If you’re in the area, come watch the debates. It would be nice to have a friendly face or two in what’s sure to be a hostile audience.

Clifford Chance is at 31 W. 52 Street, between 5th and 6th Avenues. The debate is in the 4th Floor Conference Center. RSVP to CCEvents@cliffordchance.com.

The Columbia debate is in room 107 of Jerome Greene Hall on the northeast corner of Amsterdam Ave. and W. 116th Street (directions here).

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Posted at 3:44pm on Mar. 17, 2009 Hamilton is no "moderate"

By Feddie

And so it begins.

Let's see how long it will take before Professor Kmiec writes an op-ed explaining how legal conservatives should celebrate Hamilton's appointment to the Seventh Circuit.

Update: And, of course, CNN is calling Hamilton a "moderate."

Also, and to no one's surprise, Senator Lugar is praising Obama's appointment of Hamilton.

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Posted at 12:47pm on Mar. 17, 2009 Even Dellinger Says Obama Should Go With Moderates

By Quin

My latest at the Examiner. Money quote has Dellinger saying conservative judicial philosophy is an electoral winner:
http://www.dcexaminer.com/opinion/columns/QuinHillyer/Quin-essential-Cas...

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Posted at 3:50pm on Mar. 16, 2009 The Judges are Coming

By Curt Levey

CQ’s Legal Beat blog reports that Senate Judiciary Chairman Pat Leahy “expects the first judicial nominees to be announced before the Senate leaves for its recess on April 3,” with “hearings right after the recess.” Last year, Leahy couldn’t find time to hold hearings for judicial nominees who had been waiting months or years, but I guess he’s feeling peppier in 2009.

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Posted at 12:50pm on Mar. 10, 2009 Unions at the high court

By Quin

As if we don't already know how many areas of life the Supreme Court can mess up, here's my latest on last month's Ysursa decision -- a win for the right side, but one where Souter and Breyer opened the door for another crack at it.
http://www.dcexaminer.com/opinion/columns/QuinHillyer/Unions-lose-a-batt...

It's also worth noting that two other big union-related cases are right now subject to petitions for cert grants: Adcock v Freightliner and Mackay v. Aircraft Mechanics. I don't have the links, but look'em up....

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Posted at 6:06am on Mar. 10, 2009 The Secret to Justice Souter’s Jurisprudence

By Curt Levey

"When the term of court starts, I undergo a sort of annual intellectual lobotomy and it lasts until the following summer."
— Justice David Souter, Humanities in a Civil Society Symposium, George Washington University, March 9, 2009 (quote begins at 1:26:30 here)

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Posted at 3:47pm on Mar. 4, 2009 Ted Cruz for Texas AG

By Feddie

Let me be blunt. If Texans do not elect Ted Cruz as the state's next attorney general, they do not deserve to live in that fine state.

Ted Cruz is a jurisprudential rock star. His credentials are beyond impressive, and Texans are fortunate to have someone of his caliber offer himself up for public service (yet again). To put it plainly, Ted Cruz is one of the most talented lawyers in the United States, and I encourage all of SA's many Texas readers to strongly support his bid to become the next attorney general of your state.

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Posted at 11:21am on Feb. 24, 2009 Open Thread

By Quin

Have at it, people.

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Posted at 3:02pm on Feb. 5, 2009 Best Wishes to Justice Ginsburg

By Quin

Sad news: http://www.breitbart.com/article.php?id=D965IOJ00&show_article=1.
Pancreatic cancer is usually a very bad thing. Our prayers are with the Justice.

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