Scottsdale, AZ.
Personal Note. Grading final exams and then driving to Arizona monopolized my time the past 2 weeks. Yep, grading 3 courses, each with a 4-hour examination, over 200 of them in all. That followed by packing research materials to be shipped here and then driving (with our 3 cats!!) across the country to this most glorious of places. (Along with Upstate New York, one of my favorite spots on the planet. The desert, cactus, other Southwest flora and fauna, mountains, lots and lots of blue skies and bright sun, high 90's to low 100's, bone dry, great restaurants, fabulous ethnic food, super food and other shopping, plenty of New Yorkers.... Hard to beat!)
Meantime, Obama's pick of Judge Sonia Sotomayor has kept me busy reading her opinions, following the commentary on TV, radio, and the papers, doing some radio and TV myself (via cell phone), and preparing to report on this blog what my examination of her record reveals. An earlier post on the New York Court Watcher took a look at why she was likely on the President's short list, and also raised some possible drawbacks to her then-potential nomination. (See Supreme Court: Souter's Replacement--A Short List, May 8, 2009.) Now that she has been nominated, a much closer look is in order.
Preliminarily, what I'm finding is a bit different than what is being said and written elsewhere. Most liberal Democratic partisans and their ilk in the press, on the airwaves, and elsewhere have obviously been drinking the Kool-Aid. Sotomayor apparently could not be better. And at the other end of the political spectrum, conservative Republican partisans and their ilk in the press, on the air, and elsewhere could not be more appalled. Sotomayor is clearly an unbridled liberal activist and maybe even a racist.
As might well be expected, both views are pretty far from the truth. Both are undoubtedly based on considerations other than her actual record. Indeed, one can be pretty sure that such views derive from ignorance or disregard of that record.
Sooooo, in the next few posts on New York Court Watcher we'll take a look at her record. And we'll do so uninfluenced by the Kool-Aid and unblinded by the partisan hysteria. We'll just put the cards on the table.
Thursday, May 28, 2009
Tuesday, May 12, 2009
Court of Appeals: 4-3 Majority Holds GPS Surveillance Requires Warrant Supported By Probable Cause
The New York Court of Appeals today ruled that the government must have some legal justification before it can monitor someone's whereabouts by surreptitiously attaching an electronic device (GPS) to that person's automobile. Specifically, New York's high court required the constitutional justification customarily required for a search--i.e., a warrant based upon probable cause. Additionally, because the status of Supreme Court jurisprudence is unclear on such matters, NYCOA decided the case as a matter of independent state constitutional protection.
In the case decided this morning, People v. Weaver, the police had attached a GPS device to the defendant's bumper, and then tracked his movements nonstop for 65 days. The police did so without his knowledge, without a warrant, without probable cause (i.e., reasonable grounds to believe that he was engaged in criminal activity), and apparently without any justifiable reason--at least, as admitted explicitly at oral argument before the court, no reason that would amount to probable cause and would suffice to obtain a warrant. Indeed, it was difficult to understand, even after persistent questioning by the Judges at oral argument, why the police did place the device on this particular person's car, and why they monitored this particular person for 65 days.
Of course, there must certainly have been some reason. But it was either much too weak or, perhaps, it was something that could not be mentioned in the courtroom. Whatever the case, the prosecution made clear to the court that the police had no reason that even arguably amounted to some constitutional justification for a search.
Instead, the prosecution was left to argue the nonsense that the federal Supreme Court has been spewing for almost 3 decades now. That is, that all kinds of searches are not "searches" for the purpose of the constitutional protection against "unreasonable searches." Since the police conduct is not a "search", then it does not matter how unreasonable it is. It's simply not covered by the constitutional protection.
Hence, according to the current Supreme Court, searching one's private property is not a search (as long as not within peeping distance of the home); searching one's garbage, ditto; searching one's backyard by hovering above in a helicopter, ditto; searching one's clothing for contraband with a trained police dog, ditto; etc., etc., etc. Including, searching for one's whereabouts by means of a GPS device--not a "search".
How could the Supreme Court speak such nonsense? The Justices aren't insane or complete frauds, are they? Well, no. Just too wrapped up in mechanically applying language from past cases, losing themselves in rigid legalisms, and, let's just be honest, trying to avoid having to exclude incriminating evidence that was obtained through very questionable searches.
So a little fudging here and there, and voila!! The entirely unjustified, unreasonable search is not a "search" at all.
(I've discussed this previously--and perhaps now ad nauseam. See Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?, March 24, 2009; and Notable Miscellany: Iowa/Marriage, New York/Surveillance, and the Supremes/Discrimination (Part 2 - IA & NY [and the Supremes]), April 8, 2009)
NYCOA didn't buy into that this-search-is-not-a-"search" nonsense in today's decision. As it has done in the past with, e.g., searching private land (People v. Scott), canine sniffs (People v. Dunn), searching auto parts shops (People v. Keta), reaching into someone's car and moving items on the dashboard (People v. Class), NYCOA recognized the 65 day surreptitious electronic surveillance to be a search requiring some justification--despite the Supreme Court's decisions to the contrary.
A couple of final notes. Two matters of particular significance. First, the state's new Chief Judge, Jonathan Lippman (appointed in January by Governor Paterson) carried the day. This was his first big test. He got 4 votes and, thus, the majority. He did so by carrying the votes of the 2 other Democratic-Governor appointed liberals, Carmen Ciparick (Cuomo) and Theodore Jones (Spitzer). And 1 Republican-Governor appointee, moderate conservative Eugene Pigott (Pataki).
(In dissent, not surprisingly, were Susan Read and Victoria Graffeo (both Pataki) whose voting records are very strongly pro-prosecution. The 3d dissenter was Robert Smith (also Pataki). He was a bit more of a surprise. His record in criminal cases is very moderate, and his questions at oral argument evinced great discomfort with what the police did in this case. Indeed, he did not cconceal his discomfort in his dissenting opinion.
And I should add that although I unconditionally favor the result reached by Lippman's majority, the two dissenting opinions--Smith's and Read's--were very well done. So 3 pretty strong opinions. No hysteria, no nonsense. Just clear elucidation of the differences that divided the Judges.)
Second, it has been a long time since the Court of Appeals has rendered such a decision. I.e., an independent state constitutional decision, charting its own course for what makes sense for the protection of basic constitutional rights in New York. A decision untied to how the Supreme Court might rule in this case. A decision in which NYCOA exercised its role as the highest court of New York State, defining the fundamental law of New York, enforcing the fundamental liberties of the people of New York, and placing restraints on governmental intrusions in this state. That, as opposed to behaving like a lower court in the federal system.
The last time NYCOA issued such a decision was in 1992, in the companion cases of People v. Scott (searching private lands IS a "search") and People v. Keta (inspecting an auto parts business for stolen goods IS a "search"). Both of those were 4-3.
Unlike today's decision in Weaver, however, the majority opinions in Scott and Keta were met with an hysteria-filled, accusation-laden dissenting opinion. The majority was charged with Articles of Confederation separatism for daring to render independent state constitutional decisions, as well as with unprincipled result-oriented decision-making. The majority opinions of Judges Stewart Hancock (Scott) and Vito Titone (Keta) were joined by then-Judge Judith Kaye's concurring opinion. She felt it necessary--and apparently it was then--to explain to the dissent both the actual nature of judging (exercising human judgment) and the legitimacy and responsibility of state courts to exercise independent judgment in applying the state's own law, including its constitution.
There was no such hysteria or accusations in today's dissenting opinions. Nor any need for a separate concurring opinion to give an elementary course in the judicial process. The dissenting opinions were vigorously argued, but thoughtful and strong--both on the basis of search and seizure precedent and on the proper role of the judiciary in a tripartite government. This was a good day for the Court of Appeals. Well done, on both sides.
And particularly well done, in my own humble view, because the court got it right. If the government wants to track someone's movements with an electronic device secretly attached to his vehicle, the government needs a reason, and it needs to get a warrant--at least in New York.
(BTW, as noted in the March 24th posting on Weaver, the Supreme Courts of Oregon (State v. Campbell, 1988) and Washington (State v. Jackson, 2003) have previously reached the same rather unremarkable decision that GPS tracking IS a "search" requiring justification under their state constitutions.)
In the case decided this morning, People v. Weaver, the police had attached a GPS device to the defendant's bumper, and then tracked his movements nonstop for 65 days. The police did so without his knowledge, without a warrant, without probable cause (i.e., reasonable grounds to believe that he was engaged in criminal activity), and apparently without any justifiable reason--at least, as admitted explicitly at oral argument before the court, no reason that would amount to probable cause and would suffice to obtain a warrant. Indeed, it was difficult to understand, even after persistent questioning by the Judges at oral argument, why the police did place the device on this particular person's car, and why they monitored this particular person for 65 days.
Of course, there must certainly have been some reason. But it was either much too weak or, perhaps, it was something that could not be mentioned in the courtroom. Whatever the case, the prosecution made clear to the court that the police had no reason that even arguably amounted to some constitutional justification for a search.
Instead, the prosecution was left to argue the nonsense that the federal Supreme Court has been spewing for almost 3 decades now. That is, that all kinds of searches are not "searches" for the purpose of the constitutional protection against "unreasonable searches." Since the police conduct is not a "search", then it does not matter how unreasonable it is. It's simply not covered by the constitutional protection.
Hence, according to the current Supreme Court, searching one's private property is not a search (as long as not within peeping distance of the home); searching one's garbage, ditto; searching one's backyard by hovering above in a helicopter, ditto; searching one's clothing for contraband with a trained police dog, ditto; etc., etc., etc. Including, searching for one's whereabouts by means of a GPS device--not a "search".
How could the Supreme Court speak such nonsense? The Justices aren't insane or complete frauds, are they? Well, no. Just too wrapped up in mechanically applying language from past cases, losing themselves in rigid legalisms, and, let's just be honest, trying to avoid having to exclude incriminating evidence that was obtained through very questionable searches.
So a little fudging here and there, and voila!! The entirely unjustified, unreasonable search is not a "search" at all.
(I've discussed this previously--and perhaps now ad nauseam. See Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?, March 24, 2009; and Notable Miscellany: Iowa/Marriage, New York/Surveillance, and the Supremes/Discrimination (Part 2 - IA & NY [and the Supremes]), April 8, 2009)
NYCOA didn't buy into that this-search-is-not-a-"search" nonsense in today's decision. As it has done in the past with, e.g., searching private land (People v. Scott), canine sniffs (People v. Dunn), searching auto parts shops (People v. Keta), reaching into someone's car and moving items on the dashboard (People v. Class), NYCOA recognized the 65 day surreptitious electronic surveillance to be a search requiring some justification--despite the Supreme Court's decisions to the contrary.
A couple of final notes. Two matters of particular significance. First, the state's new Chief Judge, Jonathan Lippman (appointed in January by Governor Paterson) carried the day. This was his first big test. He got 4 votes and, thus, the majority. He did so by carrying the votes of the 2 other Democratic-Governor appointed liberals, Carmen Ciparick (Cuomo) and Theodore Jones (Spitzer). And 1 Republican-Governor appointee, moderate conservative Eugene Pigott (Pataki).
(In dissent, not surprisingly, were Susan Read and Victoria Graffeo (both Pataki) whose voting records are very strongly pro-prosecution. The 3d dissenter was Robert Smith (also Pataki). He was a bit more of a surprise. His record in criminal cases is very moderate, and his questions at oral argument evinced great discomfort with what the police did in this case. Indeed, he did not cconceal his discomfort in his dissenting opinion.
And I should add that although I unconditionally favor the result reached by Lippman's majority, the two dissenting opinions--Smith's and Read's--were very well done. So 3 pretty strong opinions. No hysteria, no nonsense. Just clear elucidation of the differences that divided the Judges.)
Second, it has been a long time since the Court of Appeals has rendered such a decision. I.e., an independent state constitutional decision, charting its own course for what makes sense for the protection of basic constitutional rights in New York. A decision untied to how the Supreme Court might rule in this case. A decision in which NYCOA exercised its role as the highest court of New York State, defining the fundamental law of New York, enforcing the fundamental liberties of the people of New York, and placing restraints on governmental intrusions in this state. That, as opposed to behaving like a lower court in the federal system.
The last time NYCOA issued such a decision was in 1992, in the companion cases of People v. Scott (searching private lands IS a "search") and People v. Keta (inspecting an auto parts business for stolen goods IS a "search"). Both of those were 4-3.
Unlike today's decision in Weaver, however, the majority opinions in Scott and Keta were met with an hysteria-filled, accusation-laden dissenting opinion. The majority was charged with Articles of Confederation separatism for daring to render independent state constitutional decisions, as well as with unprincipled result-oriented decision-making. The majority opinions of Judges Stewart Hancock (Scott) and Vito Titone (Keta) were joined by then-Judge Judith Kaye's concurring opinion. She felt it necessary--and apparently it was then--to explain to the dissent both the actual nature of judging (exercising human judgment) and the legitimacy and responsibility of state courts to exercise independent judgment in applying the state's own law, including its constitution.
There was no such hysteria or accusations in today's dissenting opinions. Nor any need for a separate concurring opinion to give an elementary course in the judicial process. The dissenting opinions were vigorously argued, but thoughtful and strong--both on the basis of search and seizure precedent and on the proper role of the judiciary in a tripartite government. This was a good day for the Court of Appeals. Well done, on both sides.
And particularly well done, in my own humble view, because the court got it right. If the government wants to track someone's movements with an electronic device secretly attached to his vehicle, the government needs a reason, and it needs to get a warrant--at least in New York.
(BTW, as noted in the March 24th posting on Weaver, the Supreme Courts of Oregon (State v. Campbell, 1988) and Washington (State v. Jackson, 2003) have previously reached the same rather unremarkable decision that GPS tracking IS a "search" requiring justification under their state constitutions.)
Sunday, May 10, 2009
Re: Leah Sears--Correction to "Supreme Court: Souter's Replacement--A Short List," May 8, 2009 Post
Leah Sears is the first African-American WOMAN to serve as Georgia's Chief Justice. Her predecessor, Robert Benham, was the first African-American to hold that position.
Thanks to Jim Todd, a fellow University of Georgia alum of Justice Benham [and a dear friend and fellow University of Virginia alum of mine], for pointing out my error.
[Thanks to the wonders of blogging, I've already made the correction on the May 8 post.]
Thanks to Jim Todd, a fellow University of Georgia alum of Justice Benham [and a dear friend and fellow University of Virginia alum of mine], for pointing out my error.
[Thanks to the wonders of blogging, I've already made the correction on the May 8 post.]
Friday, May 8, 2009
Supreme Court: Souter's Replacement--A Short List
A few things at the outset.
President Obama will choose a liberal. Forget anything to the contrary. Whoever Obama picks will be on the opposite side of the hot-button issues from the very politically conservative Justices Scalia and Thomas, as well as the somewhat more moderately conservative Chief Justice Roberts and Justice Alito. Yes, Obama might choose someone who is "centrist" or "moderate" in a vacuum. But in the context of the current Court, that someone will be on the liberal side of the spectrum.
Let's be serious. Obama's not going pick someone who would have written the "torture memos." He's not going to appoint someone whose views on abortion rights, gay and lesbian rights, separation of church and state, the rights of the accused, affirmative action, civil rights, international legal obligations, and other politically charged issues would be aligned with conservative Republicans. On all or most of those kinds of questions, Obama's appointee will surely share the views of liberal Democrats. Certainly "liberal" on the national political spectrum.
Additionally, Obama's pick for the Court will have very strong credentials. Remember, the President graduated from Harvard Law, he was the editor-in-chief of its law review, he married a Harvard lawyer, and he taught Constitutional Law at the University of Chicago. He's not going too far down the legal food chain to select a Justice for the high Court.
His appointee will almost certainly be someone educated at an Ivy League institution or at an equivalent such as Virginia, Chicago or Stanford. And his appointee will have a very impressive post-school resume. A prestigious judicial clerkship, work in an important federal or state law enforcement office, experience as a judge on a federal appeals court or state supreme court or as a governor or U.S. Senator, or a distinguished academic career.
Of course, there's at least one more consideration that can't be ignored. Diversity. Obama's pick will very likely fill a gender or ethnic gap on the Court. Maybe both. Only one woman currently on the Court! Embarrassing for an institution committed to equal justice under the law. The President and his wife know--and feel--that. So a woman appointee is a good bet.
No Hispanics on the Court! Never been one. (OK, some might ask about the great Benjamin Cardozo. I asked the same when Governor Cuomo appointed Carmen Ciparick to New York's high court and she was heralded as its first Hispanic judge. What about Cardozo's earlier tenure on that court? Well, fact is, Cardozo's family ultimately derived from what used to be called Iberia--the land mass now including Spain and Portugal. But his family came from the latter part. I've been told--no, lectured--that Cardozo was therefore Portuguese, not Hispanic, and that I should keep the two distinct. I have ever since.) Of course there are political reasons for Obama to choose an Hispanic. So there's a pretty fair chance for that as well. And if not this appointment, then the next one.
Two more considerations. One judicial, one political. (Okay, there's a thin line if any between them. At least in the sense of governance. But I'm speaking here about decision-making that simply happens to occur inside the Court versus that which simply happens to occur in and between the legislative and executive branches.)
As for the judicial, Obama will surely want to do more than merely replace Souter's one liberal vote for another. If he wants to change the direction of the Court, alter the somewhat conservative leanings that have characterized its jurisprudence for almost a third of a century, Obama will need to do more. He will need to appoint someone whose influence on the institution goes beyond casting votes with the liberals. He will need to appoint someone who can influence other Justices. Someone who can get votes. Someone who by strength of intellect or personality can persuade some Justices to vote contrary to their more typically conservative instincts.
As for the political, Obama has no need for a bruising confirmation battle. He has far too much on his plate. The economy, health care, two wars, etc., etc. He can't afford to expend too much political capital by nominating someone too offensive to the Republicans and perhaps, as a consequence, unpopular with too much of the public.
With that as a preface, here's my short list of who might be on Obama's short list. There's 3 judges, 2 deans, and 1 governor.
Sonia Sotomayor.
She would seem to have it all. Certainly for a President looking for a well qualified, politically appealing Supreme Court nominee. (At least on paper. See "Possible drawback" below.)
Appellate experience--she's a judge on the 2d Circuit, the federal appeals court that sits in Manhattan. First rate education--Princeton undergraduate and Yale Law. Litigation--she was a prosecutor in the Manhattan (i.e., Robert Morganthau's) district attorney's office, the nation's most prestigious and distinguished DA's office. Bi-partisan--she was appointed to the federal trial bench by Bush, Sr., and to the appeals court by Clinton. She's 1) a woman and 2) Hispanic (Puerto Rican heritage). And to top it off, she has a moving life story of rising from modest and difficult circumstances.
She is the current conventional wisdom's front runner.
BUT...
Possible drawback: serious questions have been raised about both her intellect and her personality. For starters, there are some who say she is hardly the intellectual heavyweight or infectious personality needed to counter the conservative candlepower of a Scalia, Roberts or Alito. If true, she would not be much help in bringing change to the Court's conservative leanings.
Who knows for sure? I don't. Not personally. She could actually be brilliant and charming. But she could also be quite far from either--which is what is being said.
In any event, what has been written and said, by those who might well know (see Jeffrey Rosen's "The Case Against Sotomayor"), is more than enough to give pause. Let's be blunt, if Obama has heard what Rosen has been told--and what I too have been told by people who would know--it's hard to imagine that he would choose her. Indeed, if the assessments and criticisms are at all accurate, she does not belong on the Court.
Diane Wood.
She apparently does have the candlepower. Lots of it. And she's had to use it on the 7th Circuit, the conservative federal appeals court that sits in Chicago. She has had to deal with Richard Posner and Frank Easterbrook, two of the acknowledged genuine brilliances of the federal judiciary. Her dissents on that court evince an uncowered intellect ready and willing to go toe to toe with the best and brightest--a class that would certainly seem to include herself.
She has already worked at the Supreme Court. Following her graduation from Texas Law and then a clerkship at 5th Circuit, she served as a law clerk to Justice Harry Blackmun. She then practiced at Covington & Burling, one of the nation's truly premiere law firms. She was a professor at Georgetown Law and then at Chicago (along with Obama), where she continues to teach. She served as an assistant attorney general in the Clinton administration until he appointed her to the appeals court.
Possible drawback: her dissents in some high profile cases, which are critical of her colleagues' conservative decisions, may serve as political fodder for Republican senators who want to take a stand against the President for nominating a "liberal activist" judge.
Leah Sears
The Chief Justice of Georgia. The first African-American woman to hold that position. Also the first woman and youngest person ever to sit on that court. She is very well respected by those who study state supreme courts. Indeed, she was the 2007 Brennan Lecturer at NYU Law. She's a graduate of Cornell, Emory Law and Virginia graduate law. [She is also on the board of State Constitutional Commentary, an annual issue of the Albany Law Review. Disclosure: I am the editor of that issue and I invited her onto the board because I think very highly of her.]
Possible drawback: Governor Perdue and the Georgia Republican party actively opposed Sears's reelection as Chief Justice in 2004. That may well be a preview of Republican senators' opposition to her as, you guessed it, one of those "liberal activist" judges.
[Sears is one of several exceptional woman chief justices heading state high courts around the country. In a recent post on New York Court Watcher, I identified 9 of these state chiefs who I truly believe would make a much better Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.]
Elena Kagan
Former (and first woman) dean of Harvard Law. Education--Princeton, Oxford, Harvard Law. She has already worked at the Supreme Court as a law clerk to Justice Thurgood Marshall, which followed her clerkship at the D.C. Circuit. She was a professor at Chicago before working in the Clinton administration as an assistant White House Counsel. She is currently part of the Obama administration as Solicitor General--hence, she is responsible for representing the United States before the Supreme Court.
Possible drawback: she was already blocked once for a judicial appointment when Clinton nominated her for the D.C. Circuit.
Kathleen Sullivan
Former (and first woman) dean of Stanford Law and previously a professor at Harvard. A graduate of Cornell, Oxford, and Harvard Law (where Laurence Tribe is quoted as saying that she was the "most extraordinary student" he ever had). She clerked at the D.C. Circuit, she has argued many high profile cases before appellate courts including the Supreme Court, and she is widely considered one of America's most influential lawyer's and one of its most distinguished constitutional scholars.
Possible drawback: as with any academic, especially a true scholar, she has an extensive paper trail in which she has explored difficult issues and undoubtedly expressed views that could be exploited by Republican opposition because of their unfamiliarity or unpopularity with the general public.
Jennifer Granholm
The current Governor of Michigan. Graduate of Berkeley and Harvard Law. (Both with honors. So no need to be distracted by her past as a beauty queen and her attempts at a Hollywood career.) Following law school, she clerked at the 6th Circuit. She then served as a federal prosecutor and the Michigan Attorney General before being elected and reelected (the state's first woman) Governor.
An active supporter of Obama for President, she played the role of Sarah Palin in mock debates with V.P. candidate Biden. She was a member of Obama's transition team.
Possible drawbacks: as a Governor in a state with the declining auto industry and a failing economy, she has her hands full with crisis after crisis and with decisions unpopular with her Republican opposition in the state senate--some of which might well spill over into Republican opposition in the U.S. Senate.
So there are the 3 judges, 2 deans and 1 governor that make up my short list--of Obama's possible short list.
But let's remember Mine That Bird. A 50-1 shot winning the Kentucky Derby last weekend. So, this may well be the season for long shots. Here are a few other possibilities. And their odds are probably much better than the Derby winner's were.
What about a few guys? Okay.
Mariano-Florentino (Tino) Cuellar
Harvard, Yale Law, Stanford PhD
Stanford Law professor
Presently on Obama's Domestic Policy Council
Hispanic
Charles Ogletree
Stanford, Harvard Law
Harvard Law professor (taught both Obama and Michelle)
Eric Holder
Columbia, Columbia Law
Presently the Attorney General (the first African-American)
And 2 more women.
Kim Wardlaw (sorry, the best pic I could find)
UCLA, UCLA Law
Appointed by Clinton to the 9th Circuit, the appeals court sitting in San Francisco
Hispanic (Mexican-American mother), and the first to sit on that court
Need I say?
Hillary Clinton
Wellesley, Yale Law
Appointed by Carter as Chair of the Legal Services Corporation
First Lady
U.S. Senator from New York
Presently Secretary of State
Now there are some extraordinary potential Justices among those I've listed. (Excluding, perhaps, the supposed front runner. Is that ironic or what?) I'm not sure who I'd put at the top. Excluding the men wouldn't make it easier. For me, it would be very difficult to choose between Diane Wood, Leah Sears, Elena Kagan, Kathleen Sullivan, and Hillary. Although I must admit, I think the world of Hillary and I'd personally be thrilled if she got the nod.
But then, it would be great if Diane Wood were nominated, or Leah Sears, or....
President Obama will choose a liberal. Forget anything to the contrary. Whoever Obama picks will be on the opposite side of the hot-button issues from the very politically conservative Justices Scalia and Thomas, as well as the somewhat more moderately conservative Chief Justice Roberts and Justice Alito. Yes, Obama might choose someone who is "centrist" or "moderate" in a vacuum. But in the context of the current Court, that someone will be on the liberal side of the spectrum.
Let's be serious. Obama's not going pick someone who would have written the "torture memos." He's not going to appoint someone whose views on abortion rights, gay and lesbian rights, separation of church and state, the rights of the accused, affirmative action, civil rights, international legal obligations, and other politically charged issues would be aligned with conservative Republicans. On all or most of those kinds of questions, Obama's appointee will surely share the views of liberal Democrats. Certainly "liberal" on the national political spectrum.
Additionally, Obama's pick for the Court will have very strong credentials. Remember, the President graduated from Harvard Law, he was the editor-in-chief of its law review, he married a Harvard lawyer, and he taught Constitutional Law at the University of Chicago. He's not going too far down the legal food chain to select a Justice for the high Court.
His appointee will almost certainly be someone educated at an Ivy League institution or at an equivalent such as Virginia, Chicago or Stanford. And his appointee will have a very impressive post-school resume. A prestigious judicial clerkship, work in an important federal or state law enforcement office, experience as a judge on a federal appeals court or state supreme court or as a governor or U.S. Senator, or a distinguished academic career.
Of course, there's at least one more consideration that can't be ignored. Diversity. Obama's pick will very likely fill a gender or ethnic gap on the Court. Maybe both. Only one woman currently on the Court! Embarrassing for an institution committed to equal justice under the law. The President and his wife know--and feel--that. So a woman appointee is a good bet.
No Hispanics on the Court! Never been one. (OK, some might ask about the great Benjamin Cardozo. I asked the same when Governor Cuomo appointed Carmen Ciparick to New York's high court and she was heralded as its first Hispanic judge. What about Cardozo's earlier tenure on that court? Well, fact is, Cardozo's family ultimately derived from what used to be called Iberia--the land mass now including Spain and Portugal. But his family came from the latter part. I've been told--no, lectured--that Cardozo was therefore Portuguese, not Hispanic, and that I should keep the two distinct. I have ever since.) Of course there are political reasons for Obama to choose an Hispanic. So there's a pretty fair chance for that as well. And if not this appointment, then the next one.
Two more considerations. One judicial, one political. (Okay, there's a thin line if any between them. At least in the sense of governance. But I'm speaking here about decision-making that simply happens to occur inside the Court versus that which simply happens to occur in and between the legislative and executive branches.)
As for the judicial, Obama will surely want to do more than merely replace Souter's one liberal vote for another. If he wants to change the direction of the Court, alter the somewhat conservative leanings that have characterized its jurisprudence for almost a third of a century, Obama will need to do more. He will need to appoint someone whose influence on the institution goes beyond casting votes with the liberals. He will need to appoint someone who can influence other Justices. Someone who can get votes. Someone who by strength of intellect or personality can persuade some Justices to vote contrary to their more typically conservative instincts.
As for the political, Obama has no need for a bruising confirmation battle. He has far too much on his plate. The economy, health care, two wars, etc., etc. He can't afford to expend too much political capital by nominating someone too offensive to the Republicans and perhaps, as a consequence, unpopular with too much of the public.
With that as a preface, here's my short list of who might be on Obama's short list. There's 3 judges, 2 deans, and 1 governor.
Sonia Sotomayor.She would seem to have it all. Certainly for a President looking for a well qualified, politically appealing Supreme Court nominee. (At least on paper. See "Possible drawback" below.)
Appellate experience--she's a judge on the 2d Circuit, the federal appeals court that sits in Manhattan. First rate education--Princeton undergraduate and Yale Law. Litigation--she was a prosecutor in the Manhattan (i.e., Robert Morganthau's) district attorney's office, the nation's most prestigious and distinguished DA's office. Bi-partisan--she was appointed to the federal trial bench by Bush, Sr., and to the appeals court by Clinton. She's 1) a woman and 2) Hispanic (Puerto Rican heritage). And to top it off, she has a moving life story of rising from modest and difficult circumstances.
She is the current conventional wisdom's front runner.
BUT...
Possible drawback: serious questions have been raised about both her intellect and her personality. For starters, there are some who say she is hardly the intellectual heavyweight or infectious personality needed to counter the conservative candlepower of a Scalia, Roberts or Alito. If true, she would not be much help in bringing change to the Court's conservative leanings.
Who knows for sure? I don't. Not personally. She could actually be brilliant and charming. But she could also be quite far from either--which is what is being said.
In any event, what has been written and said, by those who might well know (see Jeffrey Rosen's "The Case Against Sotomayor"), is more than enough to give pause. Let's be blunt, if Obama has heard what Rosen has been told--and what I too have been told by people who would know--it's hard to imagine that he would choose her. Indeed, if the assessments and criticisms are at all accurate, she does not belong on the Court.
Diane Wood.She apparently does have the candlepower. Lots of it. And she's had to use it on the 7th Circuit, the conservative federal appeals court that sits in Chicago. She has had to deal with Richard Posner and Frank Easterbrook, two of the acknowledged genuine brilliances of the federal judiciary. Her dissents on that court evince an uncowered intellect ready and willing to go toe to toe with the best and brightest--a class that would certainly seem to include herself.
She has already worked at the Supreme Court. Following her graduation from Texas Law and then a clerkship at 5th Circuit, she served as a law clerk to Justice Harry Blackmun. She then practiced at Covington & Burling, one of the nation's truly premiere law firms. She was a professor at Georgetown Law and then at Chicago (along with Obama), where she continues to teach. She served as an assistant attorney general in the Clinton administration until he appointed her to the appeals court.
Possible drawback: her dissents in some high profile cases, which are critical of her colleagues' conservative decisions, may serve as political fodder for Republican senators who want to take a stand against the President for nominating a "liberal activist" judge.
Leah SearsThe Chief Justice of Georgia. The first African-American woman to hold that position. Also the first woman and youngest person ever to sit on that court. She is very well respected by those who study state supreme courts. Indeed, she was the 2007 Brennan Lecturer at NYU Law. She's a graduate of Cornell, Emory Law and Virginia graduate law. [She is also on the board of State Constitutional Commentary, an annual issue of the Albany Law Review. Disclosure: I am the editor of that issue and I invited her onto the board because I think very highly of her.]
Possible drawback: Governor Perdue and the Georgia Republican party actively opposed Sears's reelection as Chief Justice in 2004. That may well be a preview of Republican senators' opposition to her as, you guessed it, one of those "liberal activist" judges.
[Sears is one of several exceptional woman chief justices heading state high courts around the country. In a recent post on New York Court Watcher, I identified 9 of these state chiefs who I truly believe would make a much better Supreme Court than we currently have. See Chief Justice Abrahamson Gets Another Term!! -- and other Great Women Chiefs, April 10, 2009.]
Elena Kagan
Former (and first woman) dean of Harvard Law. Education--Princeton, Oxford, Harvard Law. She has already worked at the Supreme Court as a law clerk to Justice Thurgood Marshall, which followed her clerkship at the D.C. Circuit. She was a professor at Chicago before working in the Clinton administration as an assistant White House Counsel. She is currently part of the Obama administration as Solicitor General--hence, she is responsible for representing the United States before the Supreme Court.
Possible drawback: she was already blocked once for a judicial appointment when Clinton nominated her for the D.C. Circuit.
Kathleen SullivanFormer (and first woman) dean of Stanford Law and previously a professor at Harvard. A graduate of Cornell, Oxford, and Harvard Law (where Laurence Tribe is quoted as saying that she was the "most extraordinary student" he ever had). She clerked at the D.C. Circuit, she has argued many high profile cases before appellate courts including the Supreme Court, and she is widely considered one of America's most influential lawyer's and one of its most distinguished constitutional scholars.
Possible drawback: as with any academic, especially a true scholar, she has an extensive paper trail in which she has explored difficult issues and undoubtedly expressed views that could be exploited by Republican opposition because of their unfamiliarity or unpopularity with the general public.
Jennifer GranholmThe current Governor of Michigan. Graduate of Berkeley and Harvard Law. (Both with honors. So no need to be distracted by her past as a beauty queen and her attempts at a Hollywood career.) Following law school, she clerked at the 6th Circuit. She then served as a federal prosecutor and the Michigan Attorney General before being elected and reelected (the state's first woman) Governor.
An active supporter of Obama for President, she played the role of Sarah Palin in mock debates with V.P. candidate Biden. She was a member of Obama's transition team.
Possible drawbacks: as a Governor in a state with the declining auto industry and a failing economy, she has her hands full with crisis after crisis and with decisions unpopular with her Republican opposition in the state senate--some of which might well spill over into Republican opposition in the U.S. Senate.
So there are the 3 judges, 2 deans and 1 governor that make up my short list--of Obama's possible short list.
But let's remember Mine That Bird. A 50-1 shot winning the Kentucky Derby last weekend. So, this may well be the season for long shots. Here are a few other possibilities. And their odds are probably much better than the Derby winner's were.
What about a few guys? Okay.
Mariano-Florentino (Tino) CuellarHarvard, Yale Law, Stanford PhD
Stanford Law professor
Presently on Obama's Domestic Policy Council
Hispanic
Charles OgletreeStanford, Harvard Law
Harvard Law professor (taught both Obama and Michelle)
Eric HolderColumbia, Columbia Law
Presently the Attorney General (the first African-American)
And 2 more women.
Kim Wardlaw (sorry, the best pic I could find)UCLA, UCLA Law
Appointed by Clinton to the 9th Circuit, the appeals court sitting in San Francisco
Hispanic (Mexican-American mother), and the first to sit on that court
Need I say?Hillary Clinton
Wellesley, Yale Law
Appointed by Carter as Chair of the Legal Services Corporation
First Lady
U.S. Senator from New York
Presently Secretary of State
Now there are some extraordinary potential Justices among those I've listed. (Excluding, perhaps, the supposed front runner. Is that ironic or what?) I'm not sure who I'd put at the top. Excluding the men wouldn't make it easier. For me, it would be very difficult to choose between Diane Wood, Leah Sears, Elena Kagan, Kathleen Sullivan, and Hillary. Although I must admit, I think the world of Hillary and I'd personally be thrilled if she got the nod.
But then, it would be great if Diane Wood were nominated, or Leah Sears, or....
Monday, May 4, 2009
Supreme Court: [Retiring] Justice Souter (Part 1: His Ideological Voting Record)
[Skip the italics to skip the personal notes.
It's been a week and a half since the last post. My excuse? The end-of-semester sprint. Racing to finish the courses, preparing the exams, holding review sessions--and eventually the grading. UGH!!
Well, it's not as bad as actually having to take the exams. The students have it much worse than we do. Don't let any professor tell you differently.
If I had my way, I'd just bring each student in for a talk about the course--a few questions, a brief discussion about the overriding principles and concepts covered.
What about anonymous grading? OK, put a bag over my head and give the student a voice-disguising device.
But I'll bet I can get a more accurate assessment of a student's knowledge and understanding of the subject matter in a 10 minute discussion than in a 3 hour written exam. And it would be a much less harrowing experience--both for the exam taker and the grader.
IAE, it's not going to happen. So before I get buried in exam-grading, let's talk about Souter.]
Not exactly a bombshell. Justice David Souter is retiring. Well, he's leaving the Court. It's been no secret that Souter dislikes living in D.C. and wants to return to New Hampshire. The job's fine, but the place (probably including the people and the social scene) are just not for him.
[Hey, I can't blame him. I spent a year there as a Supreme Court Fellow and found the place pretty dreadful--let me count the ways. I couldn't wait to get back to God's country in upstate New York.]
So what--where--has Souter been on the Court? Well, he's been a member of the liberal wing of the Court. That is, he has been one of the Justices whose voting has been more politically liberal than that of the fairly conservative Court as a whole. Indeed, he is one of those who has most consistently opposed the rightward direction of the Court under Chief Justice William Rehnquist and, now, John Roberts.
Let's make it visual. Here are a few graphs which illustrate Souter's position on the Court's ideological spectrum.
What is plain is that Souter's voting record has placed him at the liberal end of the Court's ideological spectrum. He's been right (left?) there with Ruth Bader Ginsburg. (See the earlier posts on New York Court Watcher examining Ginsburg's place on the Court: Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 3), March 1, 2009; (Part 2), Feb. 25, 2009; and (Part I), Feb. 22, 2009.)
Together with John Paul Stevens and Stephen Breyer, he and Ginsburg have for 15 years typically voted together as the Court's liberal block on the hot-button issues. You know, separation of church and state, abortion rights, affirmative action, rights of the accused, rights of gays and lesbians, Bush v. Gore of course, and other controversial constitutional matters which usually divide the Justices and the people along the same, pretty consistent political lines.
And as for hot-button issues, let's take a look at how Souter voted on specific types of issues in the "defining decisions" of last term that we've been discussing on this blog for the past few months.
GRAPH 2 (click to enlarge)
As depicted in Graph 2, Souter sided with the party complaining about discrim-ination in each of the cases. Criminal or civil cases, race or age discrimination, discrimination itself or retaliation for complaining--Souter found merit in the claim.
Likewise on the "cultural issues," Souter's record was 100% politically liberal. Whether it was gun rights, treatment of the Gitmo detainees, the death penalty for child rapists, the binding nature of international law, or other such politically divisive questions, Souter took the politically liberal position each time.
On "law and order" issues Souter's record was not quite perfectly liberal. In one case, he went along with the Court's decision that a search by Virginia police that violated Virginia law was not an "unreasonable"--and therefore illegal--search under the Federal Constitution. Otherwise, whether the issue was the death penalty, ameliorative sentencing, ambiguity in a child pornography statute, or other crime control versus due process questions, Souter's vote was what would be expected of an ideological liberal.
Finally, on the "political process" issues, Souter voted to uphold campaign finance restrictions and to strike Indiana's Voter ID law--the politically liberal positions. But he took the more conservative position when he joined the Court to uphold New York State's concededly shameful nominating system for electing trial judges (and thereby to disagree with the federal district court and appeals court, both of which found the system so rigged and unfair that it violated basic due process). His overall record on these issues was liberal and, in fact, no other Justice's record was more so.
Let's put the foregoing in context. Let's compare Souter's voting record on these issues with that of the fairly conservative Chief Justice, the very conservative Antonin Scalia, and with the Court as a whole.
GRAPH 3 (click to enlarge)
In the discrim-ination cases, the Court's record was the same as Souter's. Chief Justice Roberts's was slightly more conservative. Scalia's was the polar opposite of Souter's.
In the "cultural issues" cases, the Court was half as liberal as Souter. Roberts was much more conservative, and, again, Scalia was Souter's polar opposite.
In the "law and order" cases, the Court again was half as liberal as Souter. Roberts was even more conservative, and Scalia was even more conservative than that.
In the "political process" cases, the Court and Roberts were equally more conservative than Souter, and Scalia was even more so--in fact, perfectly conservative.
So, "overall" is no surprise--and indeed exactly what Court watchers would have expected even without this examination. Souter's record, the most liberal. The Court's, about half as much. Roberts's record, a bit more conservative than the Court. Scalia's even more so, and virtually the opposite of Souter's record.
Well, that should give a pretty good picture of how Souter has been voting on the Court. And how his record compares with that of the Court itself and with two non-liberal colleagues.
In the next post, we'll look at how frequently Souter's been in the ruling majority of the Court, and how frequently he has been voting with each of the other Justices--i.e., who he's been agreeing with and who not.
It's been a week and a half since the last post. My excuse? The end-of-semester sprint. Racing to finish the courses, preparing the exams, holding review sessions--and eventually the grading. UGH!!
Well, it's not as bad as actually having to take the exams. The students have it much worse than we do. Don't let any professor tell you differently.
If I had my way, I'd just bring each student in for a talk about the course--a few questions, a brief discussion about the overriding principles and concepts covered.
What about anonymous grading? OK, put a bag over my head and give the student a voice-disguising device.
But I'll bet I can get a more accurate assessment of a student's knowledge and understanding of the subject matter in a 10 minute discussion than in a 3 hour written exam. And it would be a much less harrowing experience--both for the exam taker and the grader.
IAE, it's not going to happen. So before I get buried in exam-grading, let's talk about Souter.]
Not exactly a bombshell. Justice David Souter is retiring. Well, he's leaving the Court. It's been no secret that Souter dislikes living in D.C. and wants to return to New Hampshire. The job's fine, but the place (probably including the people and the social scene) are just not for him.
[Hey, I can't blame him. I spent a year there as a Supreme Court Fellow and found the place pretty dreadful--let me count the ways. I couldn't wait to get back to God's country in upstate New York.]
So what--where--has Souter been on the Court? Well, he's been a member of the liberal wing of the Court. That is, he has been one of the Justices whose voting has been more politically liberal than that of the fairly conservative Court as a whole. Indeed, he is one of those who has most consistently opposed the rightward direction of the Court under Chief Justice William Rehnquist and, now, John Roberts.
Let's make it visual. Here are a few graphs which illustrate Souter's position on the Court's ideological spectrum.
GRAPH 1 (click to enlarge)
What is plain is that Souter's voting record has placed him at the liberal end of the Court's ideological spectrum. He's been right (left?) there with Ruth Bader Ginsburg. (See the earlier posts on New York Court Watcher examining Ginsburg's place on the Court: Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 3), March 1, 2009; (Part 2), Feb. 25, 2009; and (Part I), Feb. 22, 2009.)Together with John Paul Stevens and Stephen Breyer, he and Ginsburg have for 15 years typically voted together as the Court's liberal block on the hot-button issues. You know, separation of church and state, abortion rights, affirmative action, rights of the accused, rights of gays and lesbians, Bush v. Gore of course, and other controversial constitutional matters which usually divide the Justices and the people along the same, pretty consistent political lines.
And as for hot-button issues, let's take a look at how Souter voted on specific types of issues in the "defining decisions" of last term that we've been discussing on this blog for the past few months.
GRAPH 2 (click to enlarge)
As depicted in Graph 2, Souter sided with the party complaining about discrim-ination in each of the cases. Criminal or civil cases, race or age discrimination, discrimination itself or retaliation for complaining--Souter found merit in the claim.Likewise on the "cultural issues," Souter's record was 100% politically liberal. Whether it was gun rights, treatment of the Gitmo detainees, the death penalty for child rapists, the binding nature of international law, or other such politically divisive questions, Souter took the politically liberal position each time.
On "law and order" issues Souter's record was not quite perfectly liberal. In one case, he went along with the Court's decision that a search by Virginia police that violated Virginia law was not an "unreasonable"--and therefore illegal--search under the Federal Constitution. Otherwise, whether the issue was the death penalty, ameliorative sentencing, ambiguity in a child pornography statute, or other crime control versus due process questions, Souter's vote was what would be expected of an ideological liberal.
Finally, on the "political process" issues, Souter voted to uphold campaign finance restrictions and to strike Indiana's Voter ID law--the politically liberal positions. But he took the more conservative position when he joined the Court to uphold New York State's concededly shameful nominating system for electing trial judges (and thereby to disagree with the federal district court and appeals court, both of which found the system so rigged and unfair that it violated basic due process). His overall record on these issues was liberal and, in fact, no other Justice's record was more so.
Let's put the foregoing in context. Let's compare Souter's voting record on these issues with that of the fairly conservative Chief Justice, the very conservative Antonin Scalia, and with the Court as a whole.
GRAPH 3 (click to enlarge)
In the discrim-ination cases, the Court's record was the same as Souter's. Chief Justice Roberts's was slightly more conservative. Scalia's was the polar opposite of Souter's.In the "cultural issues" cases, the Court was half as liberal as Souter. Roberts was much more conservative, and, again, Scalia was Souter's polar opposite.
In the "law and order" cases, the Court again was half as liberal as Souter. Roberts was even more conservative, and Scalia was even more conservative than that.
In the "political process" cases, the Court and Roberts were equally more conservative than Souter, and Scalia was even more so--in fact, perfectly conservative.
So, "overall" is no surprise--and indeed exactly what Court watchers would have expected even without this examination. Souter's record, the most liberal. The Court's, about half as much. Roberts's record, a bit more conservative than the Court. Scalia's even more so, and virtually the opposite of Souter's record.
Well, that should give a pretty good picture of how Souter has been voting on the Court. And how his record compares with that of the Court itself and with two non-liberal colleagues.
In the next post, we'll look at how frequently Souter's been in the ruling majority of the Court, and how frequently he has been voting with each of the other Justices--i.e., who he's been agreeing with and who not.
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