Free Markets, Free People


The Right’s Emerging Sotomayor Arguments

Some reactions from the right to the Sotomayor SCOTUS nomination:

Roger Pilon, the Cato Institute’s Director of Constitutional Studies:

In nominating Second Circuit Judge Sonia Sotomayor to fill the seat of retiring Supreme Court Justice David Souter, President Obama chose the most radical of all the frequently mentioned candidates before him.

Ilya Somin, George Mason University Law School:

I am also not favorably impressed with her notorious statement 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.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought.

Dave Kopel, Research Director at the Independence Institute:

Judge Sotomayor’s record suggests hostility, rather than empathy, for the tens of millions of Americans who exercise their right to keep and bear arms.

William Redpath, National Committee Chairman of the Libertarian Party:

By nominating Sonia Sotomayor, Barack Obama has made it clear he prefers an activist for his personal causes over a rational interpreter of law.

So the gathering argument from the right seems to be “activist”, “identity-politics”, hostility to the 2nd amendment and “radical”.

I see nothing (unless there is some hidden problem with taxes or nannys we don’t know about) that is going to keep this nomination from going through given the Democrats numbers in the Senate. But it will be interesting to see how long, how hard and how nastily the Republicans choose to fight this. I’m not sure this is the SCOTUS nominee hill to die on.


Sotomayor Nominated to SCOTUS

As a surprise to almost no one, Obama went with the candidate who fills the most quotas for his first Supreme Court pick. Since I’ve already covered what sort of Justice I think she’d be, I’ll just note that I think Obama picked the least qualified and most political of the three top contenders (Kagan and Wood being the others). Other than that, I don’t think her nomination will make much difference in the grand scheme of things.

Ilya Somin arrives at basically the same conclusion, and along the way takes special exception a particular statement from Sotomayor (my emphasis):

I am not yet sure what position to take on President Obama’s selection of Sonia Sotomayor. My general sense is that she is very liberal, and thus likely to take what I consider to be mistaken positions on many major constitutional law issues. I am also not favorably impressed with her notorious statement 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.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.

Expect to see that quote get much airtime as Republicans seek some ground from which to undermine Sotomayor’s nomination.

As for whether or not the Republicans should go to the mat on this, it seems to me like a bad idea. I think there are certainly some troubling aspects to Sotomator’s candidacy (such as her quote above), but there is also almost zero possibility that she will not be confirmed. With 59 Democrats in the Senate, there is also little hope of fillibustering the nomination. Accordingly, if Republicans choose this particular hill to die upon, they spend political capital for no gain, and risk losing the ability to generate opposition to any subsequent nominees who may have more substantive influence on the direction of the Court (e.g. a replacement for Kennedy or Scalia).

Since it appears that taking on Sotomayor’s nomination is rife with bad consequences for the GOP, I think it is a very safe bet that they will pull out all the stops in order to oppose her. This will prove once again that, sometimes, it takes great effort to earn minority party status. In that endeavor, expect the Republicans to leave no stone unturned.

Obama’s Requirements For SCOTUS

This guy was a Constitutional Law professor?

Yesterday, Obama laid out these requirements for the replacement for Justice Souter:

I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book. It is also about how our laws affect the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.

I view that quality of empathy, of understanding and identifying with people’s hopes and struggles as an essential ingredient for arriving as just decisions and outcomes. I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.

Jennifer Rubin, at Commentary, makes the following point:

The making of laws, which is a legislative function, is all about “the daily realities of people’s lives — whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation.” Federal judges decide what those laws mean and whether they conflict with the Constitution.

So it would seem that, as with many on the left, Obama is seeking someone who would be more comfortable in Congress and would certainly be seen as a “activist” justice appointed to legislate from the bench.

Rubin also deftly identifies the real meaning of Obama’s use of the word “empathy” :

You see, empathy is a code word for favoring criminal defendants, plaintiffs, labor and other groups which happen to match up with the liberal policy agenda. It’s a peculiar sort of empathy, otherwise known as bias for litigants based on their identity rather than the merit of their claims.

I believe she’s exactly right – what Obama has outlined as his requirements for the position is a liberal’s wet dream come true but completely confuses the role of the court, judges and legislators to the detriment of the citizens of the United States.

Unfortunately, due to their own failings, about all Republicans can do is, as Martin McPhillips said, whoop, holler and dance around the rim of the volcano for a while. That’s a pity, because given the “requirements”, this and subsequent appointments to the SCOTUS may be critical to our survival as a relatively free people.


David Souter Will Retire From SCOTUS (updated)

Let the real scary part of the “all Democrats all the time” begin:

Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.

The problem, of course, is that Souter could be one of three appointments Obama might have the opportunity to make within his 4 years in the White House. Apparently neither Stevens or Ginsburg plan on retiring after this term, but Stevens is 89 for heaven sake and Ginsburg just got over a bout with cancer.

Rumor has it that Obama wants to appoint a woman (I guess “best qualified for the job” is just too much to ask):

Possible nominees who have been mentioned as being on a theoretical short list include Elena Kagan, the current solicitor general who represents the government before the Supreme Court; Sonia Sotomayor, a Hispanic judge on the U.S. Court of Appeals for the Second Circuit; and Diane Wood, a federal judge in Chicago who taught at the University of Chicago at the same time future President Barack Obama was teaching constitutional law there.

Just looking at the list, Sotomayor would be the diversity daily double winner and don’t anyone think that won’t enter into the conversation when nominees are being discussed.

UPDATE: George Stephanopoulos thinks Sotomayor is a ‘heavy favorite’.

UPDATE II: MichaelW hopes if he chooses from that list that his choice is Kagan.  Here’s why.


Do Habeas Hearings Violate the Geneva Conventions?

Ed Morrissey highlights an order of a U.S. District Court regarding detainees at Bagram AFB:

A federal judge ruled on Thursday that prisoners in the war on terror can use U.S. civilian courts to challenge their detention at a military air base in Afghanistan.

U.S. District Judge John Bates turned down the United States’ motion to deny the right to three foreign detainees at Bagram Airfield in Afghanistan.

The U.S. Supreme Court ruled last year that detainees at Guantanamo Bay, Cuba, have the right to challenge their detention in court. But the government had argued that it did not apply to those in Afghanistan.

Bates said the cases were essentially the same and he quoted the Supreme Court ruling repeatedly in his judgment and applied the test created by it to each detainee. It is the first time a federal judge has applied the ruling to detainees in Afghanistan.

Unfortunately, I think Bates is correct here because of the ruling in Boumediene. As I pointed out in February:

Similarly, extending habeas corpus rights to prisoners detained on the battlefield is an exercise in futility. Of course, that ship sailed with the ruling in Boumediene v. Bush. I’m not sure what argument the government could make that any prisoners under the control of the U.S., regardless of where they are being held, are not entitled to some sort of habeas proceeding. And since the very procedures deemed constitutionally valid by the Supreme Court in Hamdi were struck down as inadequate in Boumediene, I don’t know what options are actually left to the Obama administration other than the unsavory prospect of field executions.

Barring a contrary ruling from the Supreme Court, I think this most recent case proves the point.

But, Ed Morrissey seems to think the Bates’ decision does much more. Where he (reasonably) finds that the foregoing is an unconstitutional interjection of the judiciary into matters delegated to the Executive, Ed also seems to think that Bates’ order violates the Geneva Conventions (his bolding applied):

Not only does this violate the separation of powers in the Constitution, it actually violates the Geneva Convention. Article 84 states clearly that prisoners of any stripe shall not get tried in civil courts:

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

We do not try our military personnel in civil court for offenses committed in the service. Therefore, we do not have the right to try prisoners in our civil courts, either.

There are a few problems with that conclusion:

(1) The detainees are not being tried. They’re challenging their detention. Another way of putting it is that they’re the plaintiffs in such an action (habeas hearing) as opposed to the defendants (as in a trial).

(2) Civilian courts may be used under the GC where the crimes/offenses alleged are already illegal (i.e. no a bill attainder or ex post facto law) and the court procedures provide the minimum guarantees set forth in the GC (this is spelled out in the rest of Ed’s Article 84 excerpt starting with “unless”).

(3) The Boumediene decision pretty much made this ruling necessary since the SCOTUS designated anywhere under U.S. control as being “U.S. territory”, with a few exceptions. An active battlefield is one of them IIRC and the judge may have decided that Bagram AFB doesn’t qualify.

In fact, on that last point, Judge Bates specifically noted that:

… non-Afghan detainees captured outside the country and moved to Bagram for a lengthy detention should have access to the courts to prevent the United States from being able to “move detainees physically beyond the reach of the Constitution and detain them indefinitely.”

As Boumediene is written, I think Bates got it exactly right. I do think that the entire line of reasoning and case law is incorrect from both a policy and constitutional basis, but Judge Bates is required to follow Supreme Court precedent. That his ruling serves as a perfect example how reductio absurdum can happen in real life doesn’t make him wrong.

Furthermore, I don’t see how allowing detainees to challenge their detention could possibly violate the Geneva Conventions. Again, that does not mean detainees should be afforded such rights, just that such a grant does not in any way run counter to either the letter or spirit of those treaties.

SCOTUS to review speech case

The Supreme Court will take up a case dealing with free speech:

Months after its debut, “Hillary: The Movie” faces nine of the nation’s toughest critics: the Supreme Court.

The justices’ review of the slashing documentary financed by longtime critics of Secretary of State Hillary Clinton could bring more than just a thumbs up or thumbs down. It may settle the question of whether the government can regulate a politically charged film as a campaign ad.
At issue in the case being argued before justices Tuesday is the 90-minute anti-Clinton movie and television ads [David] Bossie wanted to air during the 2008 primaries advertising the film.

Bossie’s group, the conservative Citizens United, released the movie as Clinton, then a New York senator, was competing with Obama for the Democratic presidential nomination.

The movie is unquestionably anti-Clinton, featuring commentary from conservative pundits, some of whom specifically say Clinton was not fit to be commander in chief.
The movie was shown in eight theaters. Bossie’s group wanted run ads on television in key election states during peak primary season and show the movie on cable television’s video-on-demand.

Federal courts said the ads would violate the McCain-Feingold law, the popular name for 2002 revisions to the nation’s campaign finance laws. Judges called “Hillary: The Movie” a 90-minute attack ad, rulings that would require Citizens United to identify the financial backers for the ads if they were to appear on television.

The court also said that if Bossie’s group showed the movie on cable television, financial backers would have to be named and the group would have to pay the cost of airing the movie.

Whether you agree with the message of the documentary, but voters will be able to discern for themselves if something is true or not. The government doesn’t need to stifle speech, let alone political speech.

The case is Citizens United v. Federal Election Commission. Oral arguments begin on Tuesday, March 24th.