ConfirmThem

I presently subscribe to the belief that judicial nominees should be evaluated first on their academic and professional credentials, and then only secondarily on their judicial philosophy. This is because IMHO judicial philosophy is the domain of the nominating president. Elections do have consequences. If Americans truly want a rule of law similar to what was envisioned by the Founding Fathers, they should elect a president who promises to nominate originalists and/or textualists.

With this understood, I think Sonia Sotomayor, while not my choice, was a completely legitimate, valid nominee for a president like Obama to select. It doesn't matter that she is either a woman or a Latino. It matters that she was an assistant district attorney. It matters that she was a district court judge. It matters that she was a circuit court judge.

Experience and background were my chief reasons for opposing the nomination of Harriet Miers. Miers had almost no relevant qualifications. I do not think that results justify the means. While Miers probably would have been a consistent conservative vote on the Supreme Court, Sotomayor was by far and away a better nominee based on her academic and professional credentials.

This is not to imply that judicial philosophy is unimportant. It is, but it seems odd to expect conservative nominees from a liberal president or vice versa. That said, senators should do their best to make sure that a nominee's judicial philosophy is not a mystery. The nominee's speeches and writings should be analyzed and made plain to the public. While I realize that "made plain" involves a certain amount of subjectivity and partisanship, as far as Roberts, Alito and Sotomayor go, I think the task was accomplished.

In my perfect world, Roberts, Alito and Sotomayor should have all received unanimous confirmation votes because they all possessed the prerequisite academic and professional credentials. In addition, nothing unethical or out of the ordinary was exposed about any of them. However, the Dems played political games with judicial philosophy and refused to support Roberts and Alito. As a result, there was no reason for the Republicans to line up behind Sotomayor just because of her credentials. It would have been unfair to hold Roberts and Alito to a different standard than Sotomayor. As I mentioned before, was Alito really any more to the right than Sotomayor was to the left at the time of their nominations? The answer is no. Both were suitable and acceptable nominees considering the people who nominated them.

to go back to just written Q/A or get rid of the TV cameras at the hearings. It's just turned into a giant show where the Senators make speeches and hope for gotcha moments, while the person being grilled tries to say absolutely nothing. What a giant waste of time!

It's also stupid that filibusters can be used against nominees - judicial or administrative.

http://www.rollcall.com/news/37688-1.html

"A third way of improving how we select justices is the most promising. Instead of identifying a single nominee (and perpetuating the myth that a single person is best fit to serve on the court), presidents should submit a short list of perhaps three suitable persons. The Senate, through both public and private proceedings, could then vet each of these candidates in turn, winnowing the list and ultimately confirming one person acceptable to both branches.

Such a change, requiring an amendment to Senate rules but not the Constitution, would comport well with a pragmatic judgment that the appointment process should serve as a kind of job interview with Americans and their representatives. This move might better encourage nominees to use their televised, public remarks to educate the citizenry and to speak widely and eloquently about how they apply constitutional and legal principles.

The multiple candidate approach might also lead presidents and appointees to take more risks by, respectively, nominating nontraditional figures (such as those with extensive political experience) and taking more seriously the prospect that stonewalling questions might generate real political costs. A judicial nominee who knows she will be directly compared to a candidate who could be more forthcoming will have greater incentive to provide answers with substance and bite."

http://thebulletin.us/articles/2009/08/10/top_stories/doc4a8070fe01d4067...

"After safely nominating and confirming U.S. Supreme Court Justice Sonia Sotomayor, the White House is preparing for a plethora of nominations to fill empty seats. On Friday, the first wave of judicial appointments surfaced."

I think the authors of this article are being a little sensationalist. Two COA nominations in a day is a "wave" - especially considering the fact that they won't be joined by any more COA nominees for at least a month? If Obama had named five or more COA nominees last Friday, I might have said it was a "wave", but two?

http://newsbusters.org/blogs/kyle-drennen/2009/08/10/cbs-sotomayor-known...

"Reporting on Sonia Sotomayor’s confirmation to the Supreme Court on Saturday’s CBS Evening News, correspondent Wyatt Andrews declared: "...she’s not always the reserved, work-aholic judge she portrayed in the Senate hearings....The judge is also known for her can't-miss Christmas parties, which included salsa dancing inside the federal court of appeals in Manhattan."

Andrews offered a detailed report on Sotomayor’s down-to-earth personality as he spoke with her friends and colleagues: "...according to friends, like former law clerk Allison Barkoff, the Judge has a big, engaging, New York personality." Barkoff exclaimed: "She is fun. She – she works hard and she plays hard." No mention was made in the segment of Sotomayor’s infamous "wise Latina" comments."

This article in tomorrow's WSJ -- about Justice O'Connor traveling around from COA to COA -- is utterly fascinating. I know that she is far from beloved out there (including here), but this is a pretty interesting look at what happens when retired SCOTUS justices go back to a place where they used to be (although in her case, I guess it's a place where she *never* used to be, since she never served on a COA). Things are a lot more mundane!

http://online.wsj.com/article/SB124994271588320565.html

"Unlike the Supreme Court, which cherry-picks only 1% of the 10,000 cases it is petitioned to hear, the appellate court must take an appeal from almost any loser in federal district court. Cases almost never plumb heady legal issues, but instead revolve around some quotidian -- some might even say boring -- facts. "Some fact-bound criminal case is not of special interest to me, I have to confess," she says. Most of her caseload is "not particularly demanding, intellectually.""

And then there's this vignette:

"Occasionally, the justice learns firsthand the limited discretion of a lower court judge.

"I now have occasion to have to apply some of those [Supreme Court] holdings with which I didn't agree when they were made, but of course now they're binding," she says. "It hasn't caused me to change my mind on a previous dissent. But that's water over the dam."

In June, Justice O'Connor found herself outvoted on an appellate panel for the first time. Two circuit judges decided that copper tubing stolen from air-conditioning units on a Houston rooftop were excluded from an insurance policy.

She filed a vigorous dissent. "Imagine that valuable devices or appliances are sealed within a building's interior walls," she wrote. "Under the majority's view, damage caused by tearing into these walls could not be covered.""

And then this:

"In 1937, Congress authorized retired justices to serve as substitutes on lower courts. Most have passed. It's "no fun to play in the minors after a career in the major leagues," the late Justice Potter Stewart said.

But Justice O'Connor "likes to make decisions," says former Arizona Chief Justice Ruth McGregor, another former O'Connor clerk. "Maybe she was born to do it."

For circuit courts, an O'Connor visit is a thrill. "She's one of the great justices in the history of the Supreme Court, and she has a tremendous amount still to offer," says Chief Judge Anthony Scirica of the Third Circuit.

Justice O'Connor says circuit judging is hard. "They don't waste any time," she says, sometimes deciding questions immediately after the arguments. "I liked, here at the [Supreme] Court, to take time to reflect on what I heard and check my notes and put together thoughts," she says.

Instead of the Supreme Court's marble palace, where tourists sometimes queue for hours for a glimpse of oral arguments, anyone could get a seat on a recent day in the Third Circuit's dreary modern courthouse in downtown Philadelphia."

Great stuff!

"In my perfect world, Roberts, Alito and Sotomayor should have all received unanimous confirmation votes because they all possessed the prerequisite academic and professional credentials. In addition, nothing unethical or out of the ordinary was exposed about any of them"

How far are you willing to go on this standard? Do you think for example, Laurence Tribe, whose qualifications for being on the Supreme Court are clear, should be confirmed unanimously? I'm not trying to be a jerk here, I'm just asking your viewpoint.

I'm in 90% agreement with you, that in a perfect world qualifications should be the primary question. But I do think judges should be in the mainstream of judicial thought, and not try to impose their personal views on the law. Roberts, Alito, and Sotomayor clearly are. I'm don't think that Tribe or say Pam Karlan are, though, as qualified as they may be. I can't think of any judicial examples on the right, but Richard Epstein would be an example of one that I could understand liberals saying no to, because he has clearly stated his desire to use the courts to strike down laws on the minimum wage and other worker protections. Or if you a judge who not only would overrule Roe v Wade to return the issue to the states (which should be done), but would rule that the unborn child was given protection by the 14th Amendment and thus abortion is illegal, I could understand liberals saying no.

For Circuit Courts, I would suggest that the politics of the state be a consideration in what kind of judges are appointed from there. A Pam Karlan might be acceptable in California for the 9th Circuit, but if she still was at UVa, she would be completely unacceptable for the 4th Circuit. Similarly, Priscella Owen was an excellent choice from Texas. If she had lived in New York, I could understand Chuck Schumer's objections.
A good example of this is the nomination of Stranch to the 6th Circuit. I think a lefty labor lawyer is a stretch too far from Tennessee. But had Stranch lived in Michigan (also in the 6th Circuit), I think her nomination may have been more reasonable.

Of course my suggestions are in a "perfect world" not one where we have the enormous amounts of partisanship that we do.

"Experience and background were my chief reasons for opposing the nomination of Harriet Miers. Miers had almost no relevant qualifications. I do not think that results justify the means. While Miers probably would have been a consistent conservative vote on the Supreme Court, Sotomayor was by far and away a better nominee based on her academic and professional credentials."

nominees to the SC in my lifetime. She was completely unqualified, and I don't agree with you that she would have been a consistent conservative either. She might have been a results-oriented conservative on *some* issues, e.g. pro-life, but she could have just as easily been a results-oriented liberal on others, i.e. affirmative action.

The whole point is that results-oriented judges are the ones that "turn liberal". Even if they were originally conservative, if their viewpoints shift, they move left, like Blackmun, O'Connor, Kennedy, and Souter. OTOH, originalists don't shift. Even if Scalia somehow had a bad epiphany and woke up one morning thinking that abortion was perfectly fine, his jurisprudence would remain the same.

I believe that the dumbest political move that the Dems made this entire decade was not going all out to confirm Miers. 2006 and 2008 would have been much worse had Miers been confirmed. The primary reason why I and many conservatives went out to the polls in 2006 and 2008 were judicial appointments.

I need to clarify. In terms of professional credentials, I include previous judicial experience. Roberts, Alito and Sotomayor were all COA judges at the time of their nominations and so passed my test. IMHO, Tribe may have academic credentials but not professional ones. He has never been any type of judge as far as I know.

As you can tell, this criteria alone would eliminate most "undesirables". No politicians or academics would be eligible in my perfect world. Although politicians (like Earl Warren) and academics (like Felix Frankfurter) used to populate the court in bygone days, I am opposed to their nomination now. I am opposed to politicians because of their clear tendency to make law rather than to interpret it. I am opposed to people who are solely academic because academia allows people to indulge in unlimited fantasy. Neither politicians nor academics have been forced to learn the true meaning of law by applying prior judicial precedents.

I realize that my criteria would eliminate the likes of any more Rehnquists, but it would also eliminate the likes of any more William Douglases. If a Laurence Tribe or a Richard Epstein wanted to be on the Supreme Court, in my perfect world, they would first have to have been on a circuit court.

That would eliminate Elena Kagan, Janet Napolitano, Pam Karlan and Kathleen Sullivan right away from consideration. If Obama wants a liberal genius, he can pick Diane Wood of the 7th Circuit.

Although I definitely think Blackmun moved left while on the court (due primarily to a desperate attempt on his part to justify his opinion in Roe v. Wade), I think it has been pretty well established that O'Connor, Kennedy and Souter were not all that conservative to begin with. O'Connor was chosen because she was a Republican woman. Her decisions as an Arizona legislator were not all that conservative. Kennedy's ideological quirks were well known to the people who vetted him, and Warren Rudman knew full well Souter was no conservative.

"I realize that my criteria would eliminate the likes of any more Rehnquists, but it would also eliminate the likes of any more William Douglases. If a Laurence Tribe or a Richard Epstein wanted to be on the Supreme Court, in my perfect world, they would first have to have been on a circuit court."

My problem with this is the ease to appoint someone to a Circuit Court and within a year or two elevate to the Supreme Court. Souter spent less than a year on the DC Circuit, Thomas a little more than a year, and Roberts two years.

I could probably (grudgingly) support a hypothetical Tribe nomination to the 1st Circuit Court of Appeals because Massachusetts is arguably the most liberal state in the nation and a elected Democrat President has the right to appoint someone of that type from MA. But there is no way in hell I could support a Tribe nomination to the Supreme Court, even if he served several years on the Circuit Court and used it to "moderate" his stances. The guy is just too far out there and is an activist who couldn't be trusted to follow the law. This is a guy who defended abortion rights by claiming that it would be slavery (a violation of the 13th Amendment) to force a pregnant woman to carry her child.

There is a big gulf between a liberal like Ginsberg and a liberal like Tribe, and I think that even in a world where qualified nominees are confirmed without regard to ideology, those who make up law like Tribe should be rejected.

I think there is some truth to that.

But when you see O'connor and Kennedy overruling their own decisions in Bowers, and the 16 year old death penalty case (Stanford v Kentucky), among others, there's certainly a shift there.

Although I think that judicial philosophy should be secondary in the confirmation of a judicial nominee, I do think it has a place. As I said before, I do think that a nominee should NOT be confirmed if something "out of the ordinary" is exposed about them. Activist support of an extreme progressive agenda by a politician or the development of legal theories not explicitly based in the U.S. Constitution by an academic would be in my mind "out of the ordinary" and should disqualify that person for a COA seat. It doesn't matter what the political makeup of the involved circuit is. As far as I can tell, nothing that was exposed about Sotomayor in 1998 counted as "out of the ordinary" when she was confirmed to the Second Circuit. Was she liberal? Yes, but not in a Lani Guinier sort of way. I think that Laurence Tribe, however, does have a lot of Lani Guinier "remake the world" skeletons in his closet.

Kennedy was not on the Supreme Court when Bowers v.Hardwick was decided in 1986. In fact, the only present member of the court to take part in that decision was Stevens. As a result, I don't think you can say that Kennedy's opinion in Lawrence showed a leftward shift in his jurisprudence.

Are you sure that you folks wouldn't like another birth certificate post?

:-)

This morning, Obama gave a White House reception to honor Sotomayor. For someone who didn't want Sotomayor sworn in at the White House because it smacked of partisanship, Obama did a great job at appearing partisan. In a smarmy speech full of William Brennan quotes, identity politics and thanks to Reid and Leahy, Obama sang a song of exultation in honor of the concept of a living constitution.

Two other justices were there. Not surprisingly, Stevens and Ginsburg attended - no doubt to cheer on their future comrade in dissent. The presence of Stevens was especially galling. After all, he is the one who recently denounced swearing-in ceremonies at the White House as a conflict of interest concerning the separation of powers. Why if he hates partisanship so much, would he go to such a liberal celebration as hosted by Obama today? Such hypocrisy!

http://opinion.latimes.com/opinionla/2009/08/obama-sotomayor-white-house...

"The victory party undermined the symbolism of Sotomayor's swearing-in at the court rather than at the White House."

http://blogs.wsj.com/law/2009/08/11/postscript-a-chat-with-justice-sandr...

"[Question:] You were a state judge and a Supreme Court justice for more than three decades. You retired in 2006. Why are you still out there judging?

[Answer:] It’s required. Not only that, I believe the requirement includes that the chief justice certify that I’ve done an adequate amount. And he doesn’t know what’s adequate, nor do I. I’ve done a fair amount so I assume it’s adequate. It’s kept me busy.

[Question:] Isn’t this a self enforcing burden? No one’s going to say, You haven’t been judging enough!

[Answer:] Oh, I don’t know. The chief justice has to say it’s enough.

[Question:] Does he give you a performance review each year?

[Answer;]He doesn’t say whether I’ve done a good job or not, but he has to say whether in his opinion I’ve done enough to meet the statutory requirement. I’m sure he doesn’t know what that is, because I don’t know what that is. I think I’ve done plenty, but that’s my opinion!"

The WSJ blog post on O'Connor's pension is fascinating. As a practical matter, though, I'd love to know if there's ever been a CJ who has *not* certified that a retired SCOTUS justice has met the statutory requirement to keep receiving his pension. Admittedly, most justices who actually "retire" (thereby taking senior status until death) do so when they're pretty old or frail or sick, so they're not really expected to be able to operate at full (and no CJ would penalize them for that anyhow, pension-wise). It is such a collegial body, after all.

But, in this brave new world, we now have two former justices who both retired in great health, and each could live for 25 years after their retirements/taking of senior status. It will be interesting to see how much judging Souter does in the years to come.

Great, great article!

http://legaltimes.typepad.com/blt/2009/08/justices-circuit-judges-to-att...

"Justices John Paul Stevens and Ruth Bader Ginsburg, considered part of the Supreme Court’s liberal wing, are on the guest list as the only other justices expected to attend. Five judges from the U.S. Court of Appeals for the 2nd Circuit, Sotomayor’s prior court, are on the list, as is Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit, himself once a rumored candidate for the Supreme Court.

Other expected attendees are from the civil rights community, academia, and politics [including Wade Henderson, President/CEO, Leadership Conference on Civil Rights, and John Payton, Director-Counsel and President of the NAACP Legal Defense Fund]."

http://legaltimes.typepad.com/blt/2009/08/white-house-celebrates-sotomay...

"Solicitor General Elena Kagan and Deputy SGs Neal Katyal and Edwin Kneedler; Nan Aron of Alliance for Justice; Hillary Shelton of the NAACP; Carlos Ortiz, former head of the Hispanic National Bar Association; Vice President Biden's Chief of Staff Ron Klain; and Supreme Court practitioners Tom Goldstein of Akin Gump Strauss Hauer & Feld, and Mayer Brown's Andrew Pincus."

http://www.nydailynews.com/blogs/dc/2009/08/sotomayor-not-the-only-supre...

"On the same day that President Obama hosted a White House reception for the first Hispanic on the Supreme Court, he also paid homage to the first woman ever to sit on the nation’s highest court.

Retired Justice Sandra Day O’Connor received the Medal of Freedom, the nation’s highest civilian honor, just hours after Obama paid tribute to Justice Sonia Sotomayor, the first Hispanic woman to sit on the high court.

“When a young Sandra Day graduated from Stanford Law School near the top of her class — in two years instead of the usual three — she was offered just one job in the private sector. Her prospective employer asked her how well she typed and told her there might be work for her as a legal secretary,” Obama said before hanging the medal around O’Connor’s neck. “Now, I cannot know how she would have fared as a legal secretary, but she made a mighty fine justice of the United States Supreme Court,”

“A judge and Arizona legislator, cancer survivor, child of the Texas plains, Sandra Day O’Connor is like the pilgrim in the poem she sometime quotes who has forged a new trail and built a bridge behind her for all young women to follow,” Obama added.

O’Connor was among 16 recipients of the Medal of Freedom today, including Sen. Ted Kennedy (D-Mass.), who is waging his own fight with cancer. Kennedy was unable to accept the medal himself..."

Another vacancy for Obama to fill:

http://www.ipo.org/AM/Template.cfm?Section=IPO_Daily_News_&template=/CM/...

Potential choices to replace Schall are US District Judge Jeremy Fogel, US District Judge Kathleen O'Malley, Duke Law Professor Arti Rai, US Court of Federal Claims Judge Mary Ellen Coster Williams, US District Judge Patti Saris, Beth Brinkmann, academics like Mark Lemley, Robert Merges and John Whealan, and lawyers like James Pooley and Chip Lutton.

This article from January fleshes out those possible nominees above:

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202427313730&slreturn=1...