This story on the oral arguments regarding Arizona’s new immigration law is not terribly interesting, really. Plainly, one of the three judges on the panel is not sympathetic to the feds’ argument:
“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”
So the Post then goes on to estimate the votes of the other two judges on the panel, and in doing so does something I regard as unconscionable:
Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.
But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law. “Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,” said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.
This guy is openly speculating that judges will base their decisions not on the law or the arguments, but on their race. What sort of third world crapistan does this Hellman chump think we live in? [The sort where the president calls on his preferred ethnic groups to show racial solidarity against his enemies? --Ed. Yes, I guess that would be the sort.] If I thought that any judge would base a decision on his personal identity rather than the law, I’d call for his immediate impeachment, not make glib comments to newspapers where I used the trademark phrase of the Liberal Douche, “so-called conservative.”
If anyone needs a good cheer-up today — or cheer-down, depending on one’s disposition — read Ann Althouse’s analysis of President Obama’s obfuscations and dodges regarding DADT and gay marriage. It’s devastating.
Orin Kerr points out a particularly weak portion of the Prop. 8 ruling. The judge made the following finding of fact:
Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.
Huh. Well, if it’s a fact, I guess it must be true.
I cannot think of a finer example of why social policy should not be made by judges. Quite a few people for quite some time have been debating the future effects of changing the definition of marriage. There are significant divisions within the country regarding what people believe will occur if same-sex marriage gets recognized. At the end of the day, though, everyone’s conclusions are largely speculative, with one side generally concluding that allowing new marriages won’t alter old marriages, and the other side saying that weakening an already tenuous connection between marriage and child-rearing will result in fewer stable child-rearing couples. There are valid reasons to believe each side.
But then some monarch-wannabe in a robe hears a few days of staged testimony and concludes that one side of that argument is a proven fact. Tens of millions of voters across dozens of states have weighed in here, but King Vaughn I decides that one side of a speculative debate is a proven fact, so everybody just go home and hush up about the whole thing. Because he said so.
This column by David Rivkin and Lee Casey on the demise of Don’t Ask Don’t Tell (DADT) is immensely wrong-headed as a matter of constitutional law – or, at least, it should be (one never knows what the Supreme Court will do until it does it).
Their argument is that because the Chairman of the Joint Chiefs of Staff and the Secretary of Defense have said that there is no need for DADT, therefore a court would have to find that there is no rational basis for the law and strike down the law as unconstitutional.
Let me rephrase that argument: Because two high-ranking presidential appointees don’t think there’s need for a duly-enacted law (i.e. an act of the legislature), the judicial branch should strike it down. This is a complete separation of powers clusterf**k.
Obviously the opinions of the Secretary of Defense and Chairman of the Joint Chiefs of Staff are pretty important here. Congress would be foolish not to ask them their opinion when it is performing its Constitutional duty of “regulat[ing] the land and naval forces.” But it is clear that, Constitutionally speaking, presidential appointees are irrelevant here. The Secretary of Defense’s view on DADT is no more binding than is his view on the Voting Rights Act, the national gas tax, or the existence of Martians, and Congress, seeing as it is independent from the executive, should be under no obligation to follow his suggestions.
Personally, I couldn’t care less about DADT – if I were to draw a picture of my opinions regarding DADT, I would draw a vast, featureless ocean of apathy extending to the horizon in all directions. What I do care about is judicial activism. It is, to my mind, preposterous to suggest that the judiciary should strike down an act of the legislature because of the opinion of some executive appointees. The executive and judicial branches should not try to use each other as sticks to beat down the legislative.
Of course, what would make this approach particularly galling is that there is absolutely no need for it. We have a president who won a large electoral victory campaigning, at least in part, on repealing DADT. The president’s party, even after Scott Brown’s win, has the largest Congressional majorities in 30 years. The Secretary of Defense and Chairman of the Joint Chiefs of Staff – Republican appointees both – have said there is no need for DADT. Don’t look to the courts to end DADT, just pass an effing law!
I’m always curious, after reading an op-ed that says not one vaguely fresh thing, and doesn’t even manage to say stale things with charm, why the author bothered. Mr. Boies does not need the money, and he cannot possibly think that this op-ed will change one person’s mind. He doesn’t really need the publicity, as his objective is to change the American Constitution through the courts rather than through the people. Perhaps he’s trying to increase the chance that Obama will nominate Ted Olson to the next open SCOTUS seat? Perhaps he really is so vain as to simply enjoy seeing his name in press? Or maybe he just gets his kicks by calling his countrymen bigots? Who knows.
So thanks for the heads up Dave. I’ll keep an eye out for whatever activist court they stumble in to in their attempt to undemocratically remake American law to their own liking. It must be fantastic to know that you’re so much smarter than the American people.
The desire of those on the Left to personally destroy their political opponents is never satiated.
And any comparison to the attacks on Anita Hill are inapt. Hill leveled personal charges against Clarence Thomas that were outside his duties as a judge. It was a she-said, he-said, and obviously in a situation like that, the characters of the individuals involved are important for gauging the truthfulness of the accusations.
But Ricci’s entire experience with Sottomayor has been in the courtroom. He busted his butt, he did well on his test, but then he was denied justice so he appealed. And when he appealed, instead of finding an appeals court panel that was open-minded and willing to apply the law, he found a couple of ideologues, one of whom was Sonia Sottomayor, who saw in his case not a man fighting for justice, but an opportunity to turn their policy preferences into binding precedent.
Ricci’s character has nothing to do with that story. Even evil men – and I’ve no reason to believe that Ricci is an evil man – should be able to go to our courts and receive a fair application of the law. The only relevant issue is Sottomayor’s scandalously injudicious handling of the case. Attempts to make this about anything in Ricci’s past reveal nothing besides the weakness of the Sottomayor nomination. The only people who can defend her are some people who say – because they know, because there’s never any doubt about how Sottomayor will decide a case – that she’ll vote their way.
The Wall Street Journal has published the text of Barry’s floor statement regarding the nomination of Chief Justice John Roberts:
Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his resume, his conduct during the hearings, and a conversation I had with him yesterday afternoon. There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view.
I want to take Judge Roberts at his word that he doesn’t like bullies and he sees the law and the court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.
The bottom line is this: I will be voting against John Roberts’ nomination. . . .
In other words Barry has no problem not confirming a person he admits is completely qualified to sit on the bench, simply because he doesn’t have warm fuzzy fealings for every hard case that comes across his bench.
Now that the shoe is on the other foot, however, Barry has decided that any criticisms of his nominee are “nonsense“. Nevermind that 3 of 5 decisions written by her and reviewed by the Supreme Court were overturned (60%!) Nevermind that she ascribes to a judicial philosophy best described as oligarchic:
No! The Enlightened One, has given us his choice. Who are we to question it? All this criticism is “nonsense”. Don’t you get it? She feels our pain!
Senator Obama: He’s qualified but conservative. Nay
President Obama: She’s unqualified but compassionate and liberal. Yay
Here are three paragraphs from a speech Judge Sottomayor gave in 2002. The last sentence of the first paragraph has been quoted numerous times, and I presumed that if I read the sentence in context, it would make more sense. I’m not sure it does:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.
What on earth does she mean by that sentence? 1. Why is there a presumption that “a white male” has less “rich” experiences than a “Latina woman”? 2. Even if she believed it were true that “Latina women” made better judges than “white males” (and should we be elevating people who say such things?), why would she “hope” it were true? I sincerely hope this gets explained during the confirmation hearing, and that it was nothing more than an inappropriate joke.
That hope aside, even though in the speech she makes a couple of statements along the lines of trying not to let her identity affect her judging, the speech as a whole gives the impression that she revels in how her identity shapes her judgement. Like a puppy rolling around in the grass. I think this nomination is a bad regression in the course of American race relations. I hope Justice Sottomayor is a little less obsessed with herself and her identity than is Judge Sottomayor.
American hostility to the consideration of foreign law, she said, “is a passing phase.” She predicted that “we will go back to where we were in the early 19th century when there was no question that it was appropriate to refer to decisions of other courts.”
If I recollect my histories right, there was a particular reason American judges relied on “decisions of other courts” in the early 19th century. Namely, we were a new country whose legal system was almost entirely adapted from an old country’s legal system. Indeed, the fact that this is completely different from the sort of reliance on foreign law that Ginsburg advocates can be seen in the fact that Justices Scalia and Thomas and Chief Justice Roberts feel no qualms about referring to pre-independence British law to interpret early American law, but heavily criticize Ginsburg’s use of modern foreign law. And indeed they should; two hundred years of American legal tradition, laid on top of several hundred years of British legal tradition, is an adequate source from which to draw interpretive insight into American law.
But I think elsewhere in the story we understand why she wants to use foreign law:
The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”
How are American citizens aided by having our Supreme Court quoted in foreign cases? Are Canadians freer and more prosperous because of how widely respected their Supreme Court is? Of course not! The only people who benefit from that sort of international cite swapping are the judges themselves. I bet it’d make Ginsburg feel quite good about herself if one of her masterpieces was quoted in other countries. As an American citizen, though, I can’t remotely see how it helps us for our out-of-touch legal elites to be highly regarded by out-of-touch legal elites around the world. Is that what the Founders intended by creating an independent judiciary?
If not having our Supreme Court quoted in other countries is the price we have to pay to have judges who remain true to the American legal tradition and do not wish to impose on us the thoughts of those around the world with a lot less experience and success in self-government, then that’s a bargain I’d gladly strike.
I commented a few weeks ago about commentary on NPR that was giddy about the possible repercussions of Boumediene. This last week I heard their report about the end of the Hamdan trial. The reporter said that he was uncertain why no one complained that Hamdan had not been Mirandized. That is, he seemed to think that under Boumediene a terrorist captured in a foreign country by American soldiers needs to be advised of his rights to a lawyer and to remain silent.
Boumediene is rapidly approaching the top of my list of cases I’d like to see repealed by amendment. This is a long-term disaster.
O-B-A-M-A. On detainee rights, on gun rights, and now on abortion, in the space of a month he’s now come out with three positions that are in direct opposition to the type of Supreme Court justice he claims he’d appoint. Moreover, the three justices he’s singled out as his model justices would take the opposite view of what Obama claims to support, and enshrine it as a part of the Constitution.
Nifty trick liberals have. “Of course I support this commonsense position and decry the Supreme Court when it enshrines extreme leftists positions as part of our Constitution. Please avert your eyes from the fact that I will appoint justices who do the thing I decry.”
Of course, if you read the story, plainly NARAL hears the dog whistle. They back Obama despite his adoption of his heterodox position, because they know that what he thinks (or, really, what any of us think) won’t matter once there are a couple more Ginsburgs on the Court.
Yesterday morning on NPR, this guy was discussing the results of Boumedeine. He was describing a future where the government had to go before a judge to justify every single person detained in a war: to prove that the detainee had some sort of belligerent connection, and to prove that the detainee was dangerous enough to justify locking up. He then said that the government would have to reaapear before the same judge periodically and justify not releasing the detainee.
To be clear, this applied both to people arrested on the street and to people captured on the battlefield. And, to be clear, this prospect made the commenter giddy.
The longer Boumedeine sets in on me, the more it becomes apparent that it may very well be the single greatest shift of power from one branch to another that our government has ever seen. It happened without a vote being cast, and there are those in this country who have allowed their dislike of the current president to lead them to cheering on the Supreme Court’s usurpation of war fighting powers.
For the first time, I’ll define a Supreme Court decision as scary. Both in its hamstringing of a legitimate war effort, and the in the inter-branch power struggle that will most assuredly result from it. If the judiciary insists on maintaining the unstated premise of Boumedeine – that they are supreme over the wartime decisions of the president regarding how to fight a war – they will lose.
The Founders defended the lack of limits placed on the federal judiciary by pointing out that it was naturally the weakest branch, controlling neither the military nor the treasury. Some on the court seem to remember how ill-prepared they are for a real fight with the other branches. That the wisdom of the Founders is lost on the current Court should come as no surprise.
I don’t know which is more encouraging: that McCain gave a wonderful speech on judicial nominations, or that he had Fred Thompson and Ted Olson on the stage with him.
Quite rightly, the proper role of the judiciary has become one of the defining issues of this presidential election. It will fall to the next president to nominate hundreds of qualified men and women to the federal courts, and the choices we make will reach far into the future. My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits. And the people of America — voters in both parties whose wishes and convictions are so often disregarded by unelected judges — are entitled to know what those differences are.
Federal courts are charged with applying the Constitution and laws of our country to each case at hand. There is great honor in this responsibility, and honor is the first thing to go when courts abuse their power. The moral authority of our judiciary depends on judicial self-restraint, but this authority quickly vanishes when a court presumes to make law instead of apply it. A court is hardly competent to check the abuses of other branches of government when it cannot even control itself.
One Justice of the Court remarked in a recent opinion that he was basing a conclusion on “my own experience,” even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable. But it was not exactly news that the Court had taken to setting aside the facts and the Constitution in its review of cases, and especially in politically charged cases. Often, political causes are brought before the courts that could not succeed by democratic means, and some federal judges are eager to oblige. Politicians sometimes contribute to the problem as well, abdicating responsibility and letting the courts make the tough decisions for them. One abuse of judicial authority inspires more. One act of raw judicial power invites others. And the result, over many years, has been a series of judicial opinions and edicts w andering farther and farther from the clear meanings of the Constitution, and from the clear limits of judicial power that the Constitution defines.
On Kelo v. City of New London, the infamous eminent domain case of 2005:
The year 2005 also brought the case of Susette Kelo before the Supreme Court. Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way. There is hardly a clearer principle in all the Constitution than the right of private property. There is a very clear standard in the Constitution requiring not only just compensation in the use of eminent domain, but also that private property may be taken only for “public use.” But apparently that standard has been “evolving” too. In the hands of a narrow majority of the court, even the basic right of property doesn’t mean what we all thought it meant since the founding of America. A local government seized the private property of an American citizen. It gave that property away to a private developer. And this power play actually got the constitutional “thumbs-up” from five m embers of the Supreme Court.
On his opponents:
For both Senator Obama and Senator Clinton, it turned out that not even John Roberts was quite good enough for them. Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator’s measure? Well, a justice of the court, as Senator Obama explained it — and I quote — should share “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.”
These vague words attempt to justify judicial activism — come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama’s standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama’s standard, even Judge Roberts didn’t measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it — and they see it only in each other.
On many important issues — global warming, the proper size of the federal government, campaign finance, and immigration — I have serious issues with McCain. But when it comes to the four most important issues of this campaign (the War, the War, the War, judges) he’s excellent.