Overruled


Flashback: The “Ginsburg Rule”
May 15, 2009, 4:05 pm
Filed under: Ian | Tags: , , ,

ginsburgSenator Jeff Sessions (R-AL), the Senate Judiciary Committee’s Ranking Member, announced today that his party would be “aggressive” in questioning President Obama’s nominee to the Supreme Court, warning that he didn’t think that Senate Republicans have been “aggressive enough . . . in inquiring into [past nominee’s] history, and how they are likely, based on their judicial philosophy, to have ruled in the future.”  He also added that “I think a lot of Republicans that voted for Ginsburg now believe that was probably a mistake.”

But just a few years ago, conservatives were singing a very different tune.

Once upon a time, President Bush was about to appoint a new justice, but he didn’t want the American people to figure out what a right-wing radical this new justice would be.  So President Bush’s friends at the Federalist Society had an idea; they’d find a strapping young conservative lawyer to cherry-pick quotes from a Democratic appointee’s confirmation hearings where the appointee declined to answer questions for one reason or another.  Then, they’d string these cherry-picked quotes together into a white paper which claimed that because one Democratic appointee didn’t answer a few questions in her confirmation hearings, that must mean that President Bush’s nominee didn’t have to answer any questions at all!

Thus, the “Ginsburg Rule” was born:

Roberts is not required to answer any questions, nor is he supposed to reveal his views on certain hot-button topics or how he would rule in a certain case. . . .

“You ask about their temperament, demeanor — you don’t get into the issues,” Alan Simpson, a former Republican senator from Wyoming who sat on the Judiciary Committee, told FOX News.

He suggested Roberts follow what’s known as the “Ginsburg rule,” named after Justice Ruth Ginsburg who, during her own confirmation hearings, refused to answer many questions on those grounds and was told by Democratic senators that refusing to answer was fine by them.

“If it [confirmation process] hangs up on abortion and gay rights and the social issues, boy, I think the people of America will have their thumb down their throat,” Simpson added. “You can play games, you can ask things … that no one else would ever answer, and his best response is, ‘I’ll just respond as Justice Ginsburg did.'”

Sen. Orrin Hatch, R-Utah, said despite Democrats’ arguments, the Ginsburg rule “is not a myth, it is a reality.”

Now that President Obama will be picking the next justice, however, it looks like conservatives are singing another tune.  Suddenly, Justice Ginsburg wasn’t forthcoming enough, and the Ginsburg Rule is a myth after all.

Maybe the next time a conservative President is appointing justices, we’ll get to hear all about the “Sessions Rule,” which apparently says that only Democratic nominees have to answer questions in confirmation hearings.



Oppose [INSERT NOMINEE HERE]!
May 14, 2009, 3:43 pm
Filed under: Ian | Tags: ,

More evidence that conservatives will engage in scorched earth opposition, no matter who President Obama nominates:

An aggressive fundraising group that targeted moderate GOP lawmakers earlier this year has issued a stern warning to Senate Republicans who might vote for President Obama’s nominee to fill a vacancy on the Supreme Court.

In a letter sent Wednesday, the National Republican Trust PAC cautioned the senators they may become targets of the group’s advertising campaigns if they fail to “stay true to your Republican conservative values and beliefs as you anticipate potential nominees put before you by this Administration.” . . .

Scott Wheeler, the PAC’s executive director, said he is prepared to unleash the same resources on Republicans who do not oppose Obama’s as-yet-unnamed court pick.

Truly, President Obama could nominate Rush Limbaugh, and the conservative talking point would be that Limbaugh has too much empathy for drug addicts.



What This Is Really About For the Other Team
May 14, 2009, 9:07 am
Filed under: Ian | Tags: ,

I’m surprised to see right-wing blogger Kathryn Jean Lopez admitting what everyone in Washington already knows, that the main reason we can expect the GOP to oppose President Obama’s nominee is because they see a SCOTUS battle as an opportunity to raise funds for beleagered Republican politicians.  This is why we can expect a scorched earth campaign from conservatives no matter who President Obama nominates—if they act in good faith, they’ll raise less money than if they conduct a smear campaign.



The Dance Continues
May 13, 2009, 9:13 am
Filed under: Ian | Tags: ,

I see that President Obama is scheduled to meet with Mitch McConnell and Jeff Sessions today to discuss the Supreme Court.  No doubt the only thing that will come out of this meeting is that McConnell and Sessions will float the names of one or two “acceptable nominees,” who are actually conservative judges apppointed by Bill Clinton as part of a ill-considered compromise with Orrin Hatch.  A few weeks from now, when President Obama remembers that he won the election, the President will ignore the “acceptable nominees,” and the entire GOP caucus will “with heavy hearts” conclude that have to filibuster the President’s nominee because he failed to “consult” with them.



What Goes Around Comes Around
May 13, 2009, 9:00 am
Filed under: Ian | Tags: , , ,

ScotusAs if they were trying to gin up support for John Roberts just months before his confirmation hearings, the Supreme Court decided a 5-4 case called Kelo v. New London at the very end of the term that saw Justice O’Connor’s retirement.  Doctrinally, Kelo was a snoozer—it did nothing more than uphold a decades-old doctrine establishing that the Constitution does not place practical limits on how the government can use its emminent domain power, provided that the government is willing to pay for all the property it seizes.  Politically, however, it was a train wreck.  Suddenly reminded of the fact that the government has the power to force any American to sell their home, the nation became captured by libertarian revenge fantasies against the justices who stayed their hand in Kelo, and it became very easy for George Bush to sell his new justice in part by using Kelo as a boggieman.

So, since John Roberts came to power against this background, color me a bit surprised that he is about to join a decision (most likely a majority decision) holding that school principals can strip search 13 year-old girls who are suspected of carrying Advil.  If I were looking to do something completely appalling at the very moment that the nation turns its attention to my branch of government; to do so in a way that makes me look like an out-0f-touch monster; and to do so in a way that makes President Obama’s vision of the Constitution look much more compelling by contrast, I would probably hold that it is ok to force 13 year-old girls to strip naked at a school official’s command.  Right-wing justices already make my skin crawl.  Soon, the whole nation will share that opinion.



Granholm
May 6, 2009, 9:04 am
Filed under: Ian | Tags: , , ,

granholmI’m not terribly impressed with the Washington Post‘s obligatory speculation this morning regarding the Souter replacement.  The first part of the article, which I am inclined to trust and agree with, says that the selection of the next Justice is being managed by a “small group of senior advisers,” and that this group is going to great pains to insure that nothing is leaked to the press.  Several column-inches later, the article quotes a “lawyer who has been consulted by the administration” who lists Judge Diane Wood, SG Elena Kagan and Governor Jennifer Granholm as the top tier of candidates.  Obviously, it can’t be the case that the White House is simultaneously keeping a tight lid on the nomination, while also blabbing to some unidentified lawyer about who their three finalists are.

That said, I would keep a close eye on Granholm.

Objectively, Granholm makes a lot of sense as the next Justice.  She is smart; has hard lawyering experience as a law clerk and as a prosecutor; she’s a woman; and she is not a sitting judge.  In light of all the President’s statement that he would like to appoint someone with real world experience outside of the judicial monestary, Granholm is a good fit.  Plus, she hasn’t recently been appointed to another job like Elena Kagan or Janet Napolitano.

I also wouldn’t rule out the Damon Keith factor.  Damon Keith is the iconic judge on the Sixth Circuit that Granholm clerked for right after law school.  In addition to a well-earned reputation as one of the titans of the bench, Judge Keith is known for taking a particularly active role in advancing the careers of his law clerks—and an unusually high number of Judge Keith’s clerks have risen to esteemed positions within the legal profession.



Time to Put a Real Progressive on the Supreme Court
April 30, 2009, 9:22 pm
Filed under: Ian | Tags: , ,

davidsouterNow that Justice Souter’s retirement is officialish, I wanted to repost a few thoughts on what President Obama should look for in selecting a replacement, but with one addendum, when I wrote the below-copied musings, I was not thinking ambitiously enough.  There are no liberals on the Supreme Court right now, and while I still adhere to my prior-stated belief that we must appoint a new Justice who cares as passionately about corporate accountability as she does about protecting Roe v. Wade, now is not the time to triffle with left-of-center moderates—now is the time to think about overturning San Antonio Independent School District v. Rodriguez, which held that poor children are not entitled to the same quality of education as rich children.

I’m sure I’ll have more thoughts as the nomination battle progresses.  Game ON!

For much of the 1980s and 1990s, battles over judicial policy were fought on a familiar, largely cultural battlefield.  Roe v. Wade was, of course, the rallying point for both conservatives and progressives, but other, long simmering battles over racial justice, feminism, federal vs. state power and religion in the public square were the defining points of the debate.  President Clinton focused largely on these issues, to the extent he considered ideology at all, in selecting his judges and justices.  And lest I leave any doubt as to my allegiances, I am glad he did.  Protecting Roe, ending discrimination and preserving the wall between church and state are all essential aspects of American liberty, and we sacrifice them at the nation’s peril.

In recent years, however, two new battlefields have grown in importance.  The first is executive power, and the civil liberties concerns that come with it.  This battlefield encompasses not only headline issues such as Gitmo and torture, but also more basic questions about just how much leeway we are willing to give cops and prosecutors.  For decades (at least a century at the federal level), the primary way courts protected our Fourth Amendment right to be secure from unreasonable searches and seizures is something called the “exclusionary rule.”  This is the rule Jack McCoy always gripes about on Law and Order; it says that if a cop violates the Constitution when they gather evidence, that evidence cannot be used against the suspect.

Chief Justice Rehnquist spent most of his career picking away at this rule, and John Roberts & Co. just took a massive bite out of it.  Justices Ginsburg and Breyer—President Clinton’s two appointments—have dissented from many of the Court’s most sweeping assaults on the exclusionary rule, however, and in my experience most of Clinton’s appointees to the lower courts have charted a fairly moderate course on civil liberties issues.

Where President Clinton seriously dropped the ball, however, is corporate accountability. Continue reading