Supreme Court Confirmation

Luttig's Resignation: the Real Story?

stcynic — Fri, 19 May 2006 10:20:14 +0000

Luttig's Resignation: the Real Story?

Sandefur links to this article by Harvey Silvergate in Reason about J. Michael Luttig's resignation from the 4th Circuit Court of Appeals to become the chief counsel for Boeing. That article in turn refers to a piece in the Wall Street Journal that is no longer available, unfortunately. Both articles argue that Luttig's resignation was prompted by Luttig's anger at the administration's handling of the Padilla case. I'll post a long excerpt below the fold, beginning with Silvergate's explanation of the Padilla situation and how Luttig was involved:

Simply put, after years of helping legitimize the legal legerdemain of the administration and the Department of Justice, Luttig got burned by his own allies. Back in 2002, Jose Padilla was arrested at Chicago's O'Hare Airport. When brought to New York and held as a "material witness," Padilla filed his initial petition seeking to vacate the material witness warrant, whereupon President Bush reclassified Padilla as an "enemy combatant" and transferred him to military custody at a naval brig in Charleston, South Carolina. At that point, Padilla reframed his petition in New York to challenge the extraordinary claim that the president has the authority to hold an American citizen arrested on U.S. soil, indefinitely and without trial. It was clearly the government's realization that it could lose in the moderate Court of Appeals for the Second Circuit, which has jurisdiction over New York, that caused the Department of Justice to surreptitiously transfer Padilla, with the challenge to the president's authority still pending in New York, to Charleston, which falls under the Fourth Circuit's jurisdiction.
In 2004, despite a Second Circuit ruling declaring that Padilla still fell under its jurisdiction, the Supreme Court, by a narrow 5-4 vote, allowed the administration to get away with this blatant forum shopping. Padilla was told that he would have to re-file his challenge in South Carolina. The Fourth Circuit thus was handed the opportunity to write an opinion of historic importance, while the administration had the benefit of the friendliest of venues. Luttig didn't disappoint. His September 9, 2005 opinion for the Fourth Circuit panel acceded fully to the administration's claim. The chief executive, Luttig proclaimed, could order the arrest on American soil and indefinite detention, with neither charge nor trial, of an American citizen. Simply by designating any detainee an "enemy combatant," the President could, in his sole and unreviewable discretion, effectively "disappear" anyone at any time.

Civil libertarians criticized the Fourth Circuit for investing so much power not just in one branch, but in one man, portending a radical diminution of liberty. They stressed that, under Luttig's decision, Padilla could not take advantage of the Constitution's guarantee, accorded all criminal defendants, of a public trial by indictment and jury in a court of law governed by Article III and relevant provisions of the Bill of Rights. Yet, from the administration's viewpoint, Luttig's opinion could not have been better. A holding that a citizen arrested on American soil had no more rights than those accorded a terrorist captured on a foreign battlefield gave the president unprecedented power.

Padilla requested Supreme Court review of the Fourth Circuit's opinion. Just days before the high court was expected to act on Padilla's petition, however, the DOJ bit the hand that fed it. Federal prosecutors indicted, in criminal court, the former enemy combatant. This reversal flew in the face of the government's earlier claim that its evidence was so sensitive it had to be dealt with outside the criminal justice system. Padilla would be given a trial after all. Suddenly everything the government had been telling the Fourth Circuit about the exigencies that made a public trial of Padilla unsafe for the republic had been cast into grave doubt.

Luttig, realizing that he had been taken for a ride, furiously rebelled from his role as the administration's enabler. Rejecting the DOJ's routine request that Padilla be transferred to the criminal justice system, Luttig's scathing December 21, 2005 opinion suggested that the government had disingenuously and manipulatively tried to evade Supreme Court review of its Fourth Circuit victory. People "familiar with Judge Luttig's thinking" anonymously told the Journal that his condemnation of the administration's tactics grew out of a concern that judges were expected to line up either behind or against the administration, rather than follow the law.

So far, so good. Luttig wasn't the only person to notice the administration's hypocrisy in this matter, of course, but his written reaction was unusually pointed for a sitting judge, especially one who was still regarded as a likely Supreme Court nominee. The opinion he filed was exceptionally blunt. And the administration responded by doing what it usually does to those who dare to challenge it's claims of unbridled authority - they attacked him.

Meanwhile, unnamed pro-administration sources launched an unseemly counterattack on the judge who had theretofore been their staunchest ally. Luttig, his new detractors charged, had simply thrown a judicial tantrum because he was passed over three times for appointment to the Supreme Court, his life's ambition.

Whether or not there's any truth in that--and Luttig himself assured Legal Times that there was "nothing at all" to these speculations--Luttig certainly had reasons to throw a tantrum. His Padilla ruling inflicted great damage to the rule of law in this country, and we can wish him well at Boeing and still be glad he's gone from the federal bench. But it's revealing that even a judge so deferential to executive power could no longer tolerate the Bush administration's arrogance and lawlessness--not to mention the incivility of leaving a key judicial ally twisting in the wind.

Call it conservative cannibalism.

stcynic Fri, 05/19/2006 - 06:20

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Supreme Court Confirmation

This post is just esoteric enough to stifle the "hit reply" urge of most of us, eh?

Fascinating story if true, but I'd not call it cannibalism. As related, it sounds as if Luttig had been doing the bidding of his fellow travelers, and got smitten by conscience after the administration walked all over his carefully-crafted opinion.

That he's going to work for Boeing, not exactly a Bush-Cheney-unfriendly place, further calls into question the issues of a split between conservative camps.

It is my observation that through-and-through conservatives tend not to stick around in federal appointments when they cannot advance their philosophy, and they are disappointed. But then, those who leave federal service, carp back at it from the conservative side, forever more. Think Bork. Think Bill Bennett. Think George Will.

Ultimately, I think it likely that Judge Luttig has two bright kids bound for college, and realizes that there is a lot of gold to grab if he grabs now. If Bush gets another Supreme Court appointment, private business would only polish Luttig's resume (over Michael McConnell, for example) in Bush eyes.

Don't read too much into it.

Luttig Leaves the Bench

stcynic — Wed, 10 May 2006 13:36:07 +0000

Luttig Leaves the Bench

This is interesting. J. Michael Luttig, a leading conservative judge and scholar who has often been mentioned as a potential Supreme Court nominee and would certainly be on the short list for the next vacancy should it happen before 2008, has resigned from the 4th Circuit Court of Appeals. He will be moving to the private sector, where he will become the vice president and general counsel for Boeing. At 51 years old, Luttig has been an appellate judge for 15 years and his chances of being named to the Supreme Court were probably the best of any sitting judge, along with perhaps Michael McConnell of the 10th circuit. I'm sure he'll be making a lot more money as a corporate general counsel, probably 4 or 5 times as much, but as a guy who has seemed destined for the Supreme Court since his 30s, it's still a surprising move. At least it is to me.

stcynic Wed, 05/10/2006 - 09:36

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Supreme Court Confirmation

'Tis passing strange -- do you suppose he's been to a few poker parites he shouldn't have attended? Of the conservatives that have been mentioned as front-runners for SCOTUS, he was one of the few that didn't scare me, so it's not only surprising but a mite troubling.

The fact that he has resigned from the bench doesn't mean he would be restricted from a spot on the Supreme Court, does it?

Treban - No. Current position is not a qualifier for nomination to the bench. You don't even need to be a lawyer to get appointed.

No, it doesn't mean he would be restricted from getting such a nomination, but it likely reduces his chances considerably. Traditionally, lawyers in private practice do not get nominations these days. Not out of the question, though.

The Wall Street Journal this morning has a page-one piece on Luttig's departure. Since it's subscription-only, I'll post a few grafss and e-mail the whole thing to Ed.

McLEAN, Va. -- On Nov. 22, U.S. Circuit Judge J. Michael Luttig was at work in his chambers here when he received a telephone call telling him to switch on the television. There, he saw Attorney General Alberto Gonzales announce that the government would file charges against Jose Padilla in a federal court -- treating the accused terrorist like a normal criminal suspect.

The judge was stunned. Two months earlier, he had written a landmark opinion saying the government could hold Mr. Padilla without charge in a military brig. The decision validated President Bush's claim that he could set aside Mr. Padilla's constitutional rights in the name of national security. The judge assumed the government had a compelling reason to consider the suspect an extraordinary threat. Now Mr. Gonzales wanted the courts to forget the whole case.

It didn't take long for the judge's anger to burst out into the open. The next month he wrote that moves such as the attorney general's cast doubt on the Bush administration's "credibility before the courts." Judge Luttig tried to block Mr. Padilla's transfer to civilian custody from the brig. The administration's top litigator fired back that the judge "defies both law and logic."

The clash, which underscores the increasing skepticism among even some conservative jurists toward the Bush administration's sweeping theories of executive power, culminated yesterday in Judge Luttig's resignation.

------

Instead of granting what the government considered a pro forma request to transfer Mr. Padilla to civilian custody, Judge Luttig ordered the parties to submit arguments over the question. On Dec. 21, Judge Luttig delivered a judicial bombshell: a carefully worded order refusing to move Mr. Padilla until the Supreme Court decided what to do. The order all but accused the Bush administration of misconduct.

"The government's abrupt change in course" appeared designed "to avoid consideration of our decision by the Supreme Court," Judge Luttig wrote. The government's actions suggested that "Padilla may have been held for these years . . . by mistake" and, even worse, that the government's legal positions "can, in the end, yield to expediency." Such tactics, Judge Luttig warned, could exact a "substantial cost to the government's credibility before the courts."

A furious Bush administration asked the Supreme Court to overrule the Fourth Circuit. The ruling "second guesses and usurps both the president's commander-in-chief authority and the Executive's prosecutorial discretion in a manner inconsistent with bedrock principles of separation of powers," Mr. Clement, the solicitor general, wrote.

------

People familiar with Judge Luttig's thinking say he knew his condemnation of the administration would bring a personal cost but he believes that judges must apply the law regardless of its political implications. These people say he has been disillusioned by the encroachment of politics on the judiciary -- and the view that judges are on "our team" or "their team."

I hope that doesn't exceed fair use.

Ah, thanks for that, Pieter. I hadn't even considered that issue. I recall at the time reading that Luttig was very angry (and rightly so) about the administration trying to avoid judicial review. The Supreme Court ultimately did allow the charges to go forward and Padilla to be transferred, but that's not the last of it. Many speculate that the Court wanted to wait until it made its way back up to really take a whack at the administration's position. But this may explain why Luttig left. Even if he hadn't gotten discouraged by what the administration did, he may well have recognized that his position in the case took him off any list for a future nomination and that may have sapped his desire to stay on the bench. That makes sense.

Geoffrey Stone Opposes Alito Confirmation

stcynic — Mon, 23 Jan 2006 11:26:33 +0000

Geoffrey Stone Opposes Alito Confirmation

In an interesting turn of events, Geoffrey Stone of the University of Chicago Law School has come out against the confirmation of Samuel Alito. His argument is based solely on Alito's views on executive power:

Whatever else Judge Alito may or may not have made clear about his views on such issues as abortion, federalism, and religious freedom, he has certainly made clear that he has no interest in restraining the acts of this commander-in-chief. That, in my judgment, poses a serious threat to the nation, and is a more than adequate reason for the Senate - Republicans and Democrats alike - to deny his confirmation to the Supreme Court of the United States.

In this opinion he is joined by several prominent libertarian scholars, including Radley Balko.

stcynic Mon, 01/23/2006 - 06:26

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Why do i have the feeling that Alito represents how things in this country are going to have to get worse before they get better? In Umberto Eco's latest autobiographical book he writes about how many Italians were blissfully happy with the dictatorship of Mussolini, supported as he was by both the Church and the judiciary.

My roomate and I have had a few conversations about the conservative backlash of which Alito has been a crowning symptom. I would theorize that the religious right has been the drive to push an agenda that could well put this country into the dark ages, so to speak, as far as modern history is concerned. There are a number of conservatives who truly would like to see this country go back into the world of Charles Dickens, they have used the impetuous of the religious right to forward that agenda.

It's funny in a dark way that one need only look at the Marianas Ilands and the garment industry to see the proof. Tom Delay made the comment that this is what the Republican party is all about. No labor regulations, rampant forced prostitution - with forced abortion all wrapped in a sugar topped resort cover to hide the steamy underside.

Executive powers help top the cake. To make congress beholden to the presidential power of interpreting the law and make the judiciary beholden to congressional oversight. Basicly, as I undrestand it, you would have lip service paid to the idea of oversight but ultimately the president would be king. I realize that we have term limates and such but it seems to me in that scenario the president king would have authority enough to find a way to maintain power, such as an extended national emergency.

It's such an extreme scenario but with the media bought and paid for, no real opposition standing up and doing anything about it it's a frighteningly real possability and that makes me sick to my stomach. Aside from the fact that this pisses on the hundreds of thousands who died for the ideal of this country, aside from the fact that we have to live in whatever comes of this, I have a son who just turned four - he has a lot of years to live in whatever becomes of our nation.

Is the US really going to become a dictatorship???

Kennedy's Remarks on Alito

stcynic — Tue, 10 Jan 2006 09:07:23 +0000

Kennedy's Remarks on Alito

Yesterday I highlighted the absurdities of Sen. Cornyn's opening remarks about Judge Alito's nomination. Today I think I'll point the spotlight at Sen. Kennedy on the other side of the aisle. His opening statement (scroll down) was no less ridiculous. Kennedy referred to a study by Cass Sunstein, a distinguished liberal legal scholar from the University of Chicago, of Judge Alito's opinions:

In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of the individual citizens. He has acted instead in favor of government, large corporations and other powerful interests.

In a study by the well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents.

To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

In an era when America is still too divided by race and by riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job: in 15 years on the bench, not one.

But this is hardly a serious argument. So what if he voted against individual claims 84% of the time? Unless one actually examines the case record and makes an argument as to why he was wrong to rule that way, of what possible use is such a statistic? The only thing that matters is whether his opinion was well written and supported by the facts of the case, and it's entirely illogical to argue that merely because he ruled in favor of a corporation and against an individual, the ruling must be wrong. Sen. Kennedy made no attempt whatsoever to question the validity of any of those 84% of his rulings, he merely thought that by labelling them as "against the individual" he has defeated their logic. But that is only a reasonable position if the individual claim is valid, which he makes no attempt to establish.

Sunstein's remarks on Alito's record are germane here. While he does point out that Judge Alito's decisions were reliably in line with conservative views, he also recognizes that this doesn't mean much unless you make some argument for why they are wrong:

It is important not to misread this evidence. Alito sits on a relatively liberal court, and hence his dissents are sometimes from relatively liberal rulings. None of Alito's opinions is reckless or irresponsible or even especially far-reaching. His disagreement is unfailingly respectful. His dissents are lawyerly rather than bombastic. He does not berate his colleagues. Alito does not place political ideology in the forefront.

Nor has he proclaimed an ambitious or controversial theory of interpretation. He avoids abstractions. He has not endorsed the view, associated with Justices Antonin Scalia and Clarence Thomas, that the Constitution should be interpreted to fit with the "original understanding" of those who ratified it. Several of his opinions insist on careful attention to the governing legal texts, but that approach is perfectly legitimate, to say the least.

It is absurd to use statistical measures of a judge's rulings, particularly when the only thing those measures look at is whether those rulings were more or less "conservative" than the other judges on the same court. It has no bearing on the question of whether the rulings were well-reasoned, coherent, logically follow from the government precedents, or any other legitimate measure of a ruling's validity. And it just points out that the members of both parties care only about outcomes despite their protests to the contrary and their pretense that only the other side does so.

stcynic Tue, 01/10/2006 - 04:07

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Balko on Alito

stcynic — Mon, 09 Jan 2006 17:58:21 +0000

Balko on Alito

Radley Balko has come out against the Alito nomination and he makes some very valid points in the process. The one thing that really disturbs me about Alito is his deference to the other branches of government.

stcynic Mon, 01/09/2006 - 12:58

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What disturbs me the most is his deference to executive powers. When we live in an age where it is actualy a debate as to whether the president can legaly order warrentless wiretaps among other questionable executive decisions the last thing we need on the supreme court, our last line of defense against a totalitarian governement, is a yes man. The nomination of Alito flies in the face of the idea of an independent judiciary. I decided the best way to read on Alito was to look at what traditional conservatives had to say about him and they don't seem to care a whole lot for him. Many of the decisions bush has made prove how critical our judicial system is - Alito would likely be a rubber stamp for executive mandates instead of a defender of the constitution - unless of course we end up with a opposition president.

It was interesting listening to "The Majority Report" on the radio for a bit this evening. Sam Seader was ranting about Alito of course, but made a very interesting point. In the first 70 years of this countries existence the Supreme Court overturned 2 laws passed by congress. In the last 10 years close to 30 laws have been overturned. The insinuation being that this was the work of conservative judicial activism.

Treban, I would interpret the difference to the fact that the Congress has, in the last 30 years, taken to little more than posturing, pretty much knowing that the courts would overturn their posturing.

Cornyn's Remarks on Alito

stcynic — Mon, 09 Jan 2006 15:52:51 +0000

Cornyn's Remarks on Alito

As I mentioned, I did get to hear a few minutes of Sen. John Cornyn's (R-Texas) opening remarks in this morning's Alito confirmation hearing and got a good chuckle out of it. As is common among partisans of both parties, he portrayed he and his party as motivated solely by a concern for truth and justice while the other party is beholden to "special interest groups" and beset by ulterior motives. It's this kind of pot-and-kettle rhetoric that convinces me that it is folly to take either party seriously. For instance:

If qualifications, integrity, fairness, and open-mindedness were all that mattered in this process, you would be confirmed unanimously. But we know that is not how this process works. We know that 22 Senators--including 5 on this Committee--voted against Chief Justice Roberts just a few months ago. We therefore know that you do not exactly come here today on a level playing field. I am reluctantly inclined to the view that you and any other nominee of this President for the Supreme Court start with no more than 13 votes in this Committee, and only 78 votes in the full Senate, with a solid, immovable, and unpersuadable block of at least 22 votes against you, no matter what you say, no matter what you do. That is unfortunate for you, but even worse for the Senate and its reputation as the world's greatest deliberative body.

He does not mention the obvious fact that in addition to those 22 or so "immovable votes" - senators who will vote against virtually anyone the other party's President would nominate for the court - there are probably twice as many such votes in his own party. Does anyone seriously doubt that the majority of Republican senators would vote for any nominee the White House would send up, regardless of their specific views or background? Had Harriet Miers' nomination not been withdrawn, I doubt she would have gotten more than 10 Republican votes against her despite the near-universal misgivings about her qualifications for the job. This is simply party politics and to pretend to have the high road is absurd.

The question is why--with so many people from both sides of the aisle and across the ideological spectrum supporting your nomination--are liberal special interest groups and their allies devoting so much time and money to defeat your nomination? The answer, I'm afraid, is that there are a number of groups that do not want honest and fair-minded judges on the Supreme Court. Rather, they want judges who will impose their liberal agenda on the American people.

Here's that argumentum ad labelum tactic again - label a group "liberal" and you have defeated their arguments. His answer, of course, is absurd. Why are liberal groups spending so much time and money to defeat Alito? Because they think that he's going to cast votes in cases that are opposed to what they want. Why are conservatives groups spending so much time and money to support Alito? Because, obviously, they think that Alito is going to cast votes in cases that are in line with what they want. It really is that simple and for anyone of either party to pretend otherwise is sheer folly.

And if a nominee is going to rule the way a given politico wants, then he is obviously a man of "fairness" and "principle" with the right "judicial temperament" (whatever the hell that is); if he isn't going to rule the way one wants, then clearly he is an "extremist" and "out of the mainstream", a judge with an "agenda" to "impose his views on the American people." It's the same script, regardless of which side you're on.

Judge Alito, these groups are trying to defeat your nomination because you will not support their liberal agenda. And the reason they oppose you is precisely why I support you. I want judges on the Supreme Court who will not use their position to impose a political agenda on the American people. I want judges on the Supreme Court who will respect the words and meaning of the Constitution, the laws enacted by Congress, and the laws enacted by state legislatures.

Unless, of course, state legislatures - or better yet, popular referenda voted by the people directly - happen to vote for something he doesn't like, say medical marijuana or legalized assisted suicide. Then, by golly, he wants judges on the Supreme Court who will ignore the words and meaning of the Constitution and uphold Congressional authority to overrule those laws enacted by the states even when such power is clearly not given to the Congress in the Constitution (Ms. Raich, call your office).

I will give you one example of an area where I believe our Supreme Court has been rewriting the Constitution for a very long time. It is an area that is very dear to me and to many others in this country. I am speaking of the ability of people of faith to express themselves in public...

When I was the Attorney General of Texas, I argued a case in the Supreme Court called Santa Fe Independent School District v. Doe. The school district had the temerity to permit student-led, student-initiated prayer at football games, and, of course, someone sued. I repeat, this was student-led, student-initiated, voluntary prayer. The Supreme Court held by a vote of 6-3 that even this was unconstitutional. The decision led the late Chief Justice Rehnquist to remark that the Court now exhibits "hostility to all things religious in public life." It is hard to disagree with him. Depictions and expression of views on sex, violence, crime, are all permitted virtually without limit - but religion, no!

His description of the facts of the case is highly inaccurate. In fact, the court's ruling makes clear that what went on was not private speech but public speech:

The District argues unpersuasively that these principles are inapplicable because the policy's messages are private student speech, not public speech. The delivery of a message such as the invocation here-on school property, at school-sponsored events, over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as "private" speech. Although the District relies heavily on this Court's cases addressing public forums, e. g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, it is clear that the District's pregame ceremony is not the type of forum discussed in such cases. The District simply does not evince an intent to open its ceremony to indiscriminate use by the student body generally, see, e. g., Hazelwood School Dist. v. Kuhlmeier, 484 U. S. 260, 270, but, rather, allows only one student, the same student for the entire season, to give the invocation, which is subject to particular regulations that confine the content and topic of the student's message. The majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235. Moreover, the District has failed to divorce itself from the invocations' religious content. The policy involves both perceived and actual endorsement of religion, see Lee, 505 U. S., at 590, declaring that the student elections take place because the District "has chosen to permit" student-delivered invocations, that the invocation "shall" be conducted "by the high school student council" "[u]pon advice and direction of the high school principal," and that it must be consistent with the policy's goals, which include "solemniz[ing] the event." A religious message is the most obvious method of solemnizing an event. Indeed, the only type of message expressly endorsed in the policy is an "invocation," a term which primarily describes an appeal for divine assistance and, as used in the past at Santa Fe High School, has always entailed a focused religious message.

It is absurd to argue that an invocation that takes place as the result of an official school policy, at a school function, using school facilities and imposed upon all in attendance regardless of their views, is genuinely "student-initiated" and "student-led". And as always, I am baffled by the insistence on the part of folks like Cornyn that if they are not allowed to impose their religous practices on those who may not subscribe to them, their right to free exercise of reliigion has someone been taken away.

Every single person at the football game is free to pray if they choose. They can gather together in the stadium in groups and pray if they like. They can hand out religious literature at the game if they want to. They can use school facilities, including the football stadium, after school hours to put on religious programs or to gather for prayer if they choose. But somehow that's not good enough for them. They want exclusive access to the loudspeaker to make sure that everyone there, even if they don't believe the same thing, has to sit through their religious rituals and listen to them. They want to impose on everyone there, regardless of their religious beliefs or lack thereof, and if they are denied that authority they scream "judicial tyranny!". It's quite absurd.

stcynic Mon, 01/09/2006 - 10:52

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Brit Hume and Robert Bork

stcynic — Mon, 09 Jan 2006 13:08:47 +0000

Brit Hume and Robert Bork

I've had the Alito confirmation hearing on in the other room but I haven't been paying attention to them because, frankly, the opening statements by the senators on the committee are pretty much meaningless hot air. But as I was walking through the room I heard Brit Hume mention Robert Bork and I stopped for a second to catch what he said. I'm glad I did - what he said was false. He said:

"He had a reasoned position on a line of cases leading to Roe v Wade and he argued it in such a way that it gave the impression that he didn't think there was a right to privacy in the constitution. He didn't think that but it sounded like he did."

This is simply wrong. Bork has emphatically argued that there is no general "right to privacy" beyond the specific provisions of, for example, the 4th amendment. Even a cursory examination of his writings on the subject prove this true. He has repeatedly referred to the right to privacy in Griswold as a "new" or "invented" constitutional right, in no way tied to the text of the Constitution.

I actually did catch later some of Sen. Cornyn's opening remarks and they were full of ridiculous rhetoric. I hope to find the full text of them so I can have some fun with them.

stcynic Mon, 01/09/2006 - 08:08

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Part one of the transcript right here.

Part two, which opens with Cornyn's whinging is here.

Wouldn't it be stunningly amazing if one of the MSM streams actually discussed historical nomination proceedings?? Rather than continually rehashing Bork for example, couldn't they dig out the recorded transcripts of nominees in the early 1800's to see what they were saying about their understanding of the "power" of the US Constitution?? Or those in the late 1800's when the robber barons and their financial supporters were trying to stack the Court as they had the US Senate????

If I'm remembering this correctly, the nomination deliberations of the Senate from the early 1800s were not recorded, and are not available. Until the later 1800s, I don't think there was even a judiciary committee that reviewed nominations before making a recommendation vote, as is now generally the rule. Until the early 20th century, it was highly unusual even for a nominee to appear before a Senate committee or even meet with individual Senators. Brandeis (I think) was one of the first to really show up and defend himself and his views (he was ultimately successful).

CNN on John Roberts So Far

stcynic — Wed, 28 Dec 2005 23:46:51 +0000

CNN on John Roberts So Far

CNN has a long review of the job Chief Justice John Roberts is doing so far at the Supreme Court. By all accounts, the other justices have embraced him and he has shown great understanding of and affinity for court tradition. The article contains some interesting items for those of us who really watch the court and how the justices interact with one another:

And so it has gone this term, where an atmosphere of practically buoyant camaraderie has drifted through an institution that prides itself on continuity and certainty. This is in stark contrast to the mood during the year preceding Roberts' arrival, when anxiety over the health of his ailing predecessor, William Rehnquist, cast a cloud over the court's mood.

"The change has been amazing, the justices are a happy bunch again," said one court official, who asked not to be identified. "They joke in arguments, they joke among themselves privately. The chief was just the type of man this place needed."

Good news, certainly. Another passage that speaks to the camaraderie on the new court:

Associates say the new chief respects seniority and on October 3, the first day of the new term, he broke precedent by letting Stevens speak first. The spry justice offered a moving tribute to Rehnquist, who had died the previous month, and whom court staff now refer to as the "old chief."

Stevens then turned to the future, welcoming the newest member.

"It is appropriate to note that in his prejudicial career our new chief justice argued 39 times before the court, a number that exceeds the combined experience of the rest of us," said Stevens, bringing wide smiles from the other jurists and an especially vigorous nod from O'Connor. "We know him well and he has already earned our respect and admiration."

And another passage about the behind the scenes interactions and the level of formality there:

Justice Thomas recently told a judicial conference in Colorado Springs about the first meeting with Roberts in charge, when the justices gathered in a closed-door session to discuss pending cases.

By tradition, the chief justice speaks first in the conference, followed -- in order of seniority -- by the other justices. He addressed them formally, "Justice Stevens," "Justice O'Connor."

Then came "Justice Scalia." As Thomas related, the ebullient Antonin Scalia then spoke up. "I will always call you 'Chief,'" he said, "But for you, I'm 'Nino' and this is 'Sandra,' and this is 'John.'"

I like that, on the part of Scalia. Very nicely done and well balanced. Anyway, read the whole thing.

stcynic Wed, 12/28/2005 - 18:46

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Alito's Libertarianism?

stcynic — Mon, 14 Nov 2005 09:12:12 +0000

Alito's Libertarianism?

Ilya Somin of the Cato Institute has a report on Supreme Court nominee Samuel Alito noting that he has a decidedly libertarian streak in many of his rulings. Somin writes:

Most debate about Supreme Court nominee Samuel Alito has focused on his propensity to vote to overrule Roe v. Wade and the similarity between him and conservative Justice Antonin Scalia. But despite the superficial parallels between the two conservative, Italian-American Catholic jurists, it is important to recognize that Alito has a substantial libertarian dimension to his jurisprudence as well as a conservative one. In several key fields of law, he is more likely than Scalia and other conservatives to be skeptical of assertions of government power. More important, there is much in his record that should appeal to libertarians and -- to a lesser extent -- even left-wing liberals.

In most judicial cases, the correct result is sufficiently clear that differences in judicial philosophy are unlikely to affect the outcome. However, they often do matter in cases where the issue at stake is controversial, and traditional legal materials do not strongly favor one side or the other. While judges should not simply vote for whatever outcomes because they prefer them on policy grounds, a libertarian orientation helps sensitize jurists to the fact that the Constitution is meant to constrain government, not just empower electoral majorities, as some conservatives claim. Here Alito's libertarian streak and his differences with Scalia may have an impact.

In sharp contrast to Scalia, Alito has often voted in favor of the free exercise rights of minority religious groups, even against laws that are not deliberately intended to harm minority religions. In Fraternal Order of Police v. City of Newark (1999), he joined an opinion holding that Muslim police officers had a right to grow beards (as required by their religion) so long as the city allowed a secular health-related exemption from its no-beard policy. This result is in tension with Scalia's position in the important case of Employment Division v. Smith, where he wrote a decision holding that the Constitution in most cases does not protect religious groups against the effects of "neutral" laws. Given that the FOP case involved Muslims, it is hard to argue that Alito was just voting for the rights of a group whose religious values he shares. In another case, Blackhawk v. Pennsylvania, Alito authored an opinion establishing a free exercise exemption for a Native American religious group. While these Alito decisions do not directly contradict Smith, they certainly provide much stronger protections for minority religious groups than Scalia would be likely to favor.

Alito also differs from Scalia on the key issue of federalism. In United States v. Rybar (1996), Alito dissented from a case upholding a federal statute banning machine gun possession. Alito argued that a categorical ban on the intrastate ownership of machine guns falls outside of Congress's power to regulate interstate commerce. The case cannot be explained, as some might believe, on the grounds that Alito somehow sympathizes with private ownership of machine guns. In the opinion, he favorably refers to state bans on machine gun possession. Alito's position differs from Scalia's recent opinion in Gonzales v. Raich, where the Justice argued that the commerce power justified upholding a federal ban on the possession of marijuana, even for noncommercial medical purposes permitted under state law.

There's more detail in the link above.

stcynic Mon, 11/14/2005 - 04:12

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Supreme Court Confirmation

I fail to see how ruling in favour of free exercise marks him out as being particularly libertarian. Fair enough it distinguishes him from Scalia, but even principled social conservatives can see that free exercise is a fully fledged enumerated right. The smarter ones even recognise that protecting minority rights is the best way to protect majority rights, in the long term. The problem is with Scalia's lack of principle. Similarly federalism isn't necessarily a mark of libertarianism - if a state regulates something rather than the feds it's still regulated.

I fail to see how a libertarian could uphold a law that intrudes into the marital relationship. I have no problem with a libertarian being pro-life, but forcing a wife to tell her husband about plans to undertake a legal medical procedure??

Not to mention, aren't libertarians more inclined (if not by definition) take an expansive view of the 9th Amendment? No one who says "The Constitution nowhere grants a right to blank" can be considered libertarian.

Epstein on Opposition to Alito

stcynic — Sat, 12 Nov 2005 11:38:11 +0000

Epstein on Opposition to Alito

Richard Epstein, who would certainly be on my short list of supreme court nominees if I was President, has written an interesting essay evaluating the arguments against confirming Samuel Alito so far. This was written before the conflict of interest stuff came out, so it's based only on his judicial record. I generally agree with his arguments. There is nothing so far to justify voting against him.

stcynic Sat, 11/12/2005 - 06:38

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Supreme Court Confirmation

I have been working too much lately to keep track of these conflict of interest arguments but at risk of sounding like that loathesome ass Rush, I have the impression that they are cries of desperation from left wingnuts and those who object just because Bush nominated him. Like Roberts, he certainly wouldn't be my first pick, personaly being a bit left leaning on most issues, but we don't have a left leaning president - we have Bush. Ultimately, while a persons past does have some bearing, I have gotten the impression that being on the bench - especialy the supreme court, forces an almost evolutionary maturing. I sincerly doubt Alito will be the same Judge he is today in ten years if he is confirmed. Indeed, by many accounts, he could very well fill the role of a swing voter right away. As I understand it, and I am far from a nuanced understanding of law, the most important quality in a justice is the ability to be objective - the more I learn about him the more he appears to be legit. I think the biggest problem with commentators going off one way or the other about supreme court nominees is that 99% of us - meaning me and others, not you Mr. Brayton - is that we don't know nearly enough about law to judge the abilities and even the rulings of a candidate. We are forced to let others tell us what the opinions a judge has written mean, what a judge realy is ruling on - in short we haven't the context to say whether this judge or that is turly objective. Unfortunately, most of those commentators we listen to are far from competent in this regard either - nor I fear are many senators. And for god's sake, taking a poll of ordinary Americans on their opinions of a judicial nominee is like taking a poll of those same peoples opinions on who should be the next head of nuclear medicine at John Hopkins.

-possible satire alert-
"And for god's sake, taking a poll of ordinary Americans on their opinions of a judicial nominee is like taking a poll of those same peoples opinions on who should be the next head of nuclear medicine at John Hopkins"

I am not sure what Treban is suggesting, but most of us who take our role and responsibility as citizens more seriously than others, actually vote on judges in local, regional, and state elections. These votes require citizens to become informed--albeit with less sophistication than those whose vocations are to involve themselves in legal review--about judges, how they rule, what their temperment is from the bench as so forth. If your statement were true, i suppose we should abrogate our responsiblities and just let those with proper expertise appoint our judges for us. It would certainly free up some time during the election cycles, as the efforts to evaluate and analyze judges is the hardest of all the aspects of voting responsibly.