Fausta's Blog

Judge Robert Bork, 1927-2012, died today, age 85. His friend John Podhoretz writes his obituary,

Perhaps the most important legal scholar of his day, whose work on matters ranging from anti-trust to the complexities of privacy laws was both accessible and deeply considered, Bork was exactly the sort of choice serious-minded people should have welcomed. The Court had been in large measure the province of lightweights who were considered politically safe or somehow controllable, men who possessed no intellectual compass and were either the captives of their clerks or of the conventional wisdom. His nomination did the Court credit. It was an effort to elevate it.

But no. Nothing like the campaign to deny Bork the Supreme Court had ever been seen before. It was a systematic campaign of personal destruction undertaken by liberal interest groups who had come to see the growing conservatism of the Reagan-era judiciary as an existential threat to them. Only a year earlier, Antonin Scalia had been affirmed by a 98-0 vote in the Senate, but in the interim, Democrats had taken hold of the body in the 1986 elections and the stage was set for a new era of personal destruction in the pursuit of a supposedly higher good.

I had the honor of briefly meeting Judge Bork a few years ago. He was one of the most brilliant men of our times. Adam J. White points out that

The changed course of future Supreme Court nominations was the Bork nomination’s most obvious legacy, but that was not its only legacy. Indeed, the Bork nomination’s most significant impact may be not the manner in which Supreme Court justices are selected, but rather the content of constitutional law itself. For while Bork himself was pilloried for embracing an originalist approach to constitutional law, his nomination’s failure laid the basis for originalism’s eventual success. The Bork hearings galvanized conservatives and challenged them to refine originalism to achieve greater political effectiveness.

White concludes, “Only 25 years after Robert Bork suffered public defeat at the hands of Ted Kennedy and the left, the most interesting question in constitutional law is not whether conservatives can prevail with originalism, but whether liberals can prevail without it. Welcome to Robert Bork’s America.”

Cross-posted at Liberty Unyielding.

UPDATE,
Mary Jo Kopechne could not be reached for comment.

In case you missed it, yesterday a summit took place between the three largest economies of North America: Canada, Mexico, and the USA. You would think this would be news as of itself, since it involves membership on the Trans-Pacific Partnership (TPP) free-trade zone.

Instead, Obama diverted the press conference into the issue of Obamacare and the SCOTUS, by cautioning the justices, to whom he referred to as “an unelected group of people,”

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,”

Video:

This was an attack on the court’s standing and even its integrity in a backhanded way

It is outrageous enough that the president’s protest was inaccurate. What in the world is he talking about when he asserts the law was passed by “a strong majority of a democratically elected Congress”? The Patient Protection and Affordable Health Care Act barely squeaked through the Congress. In the Senate it escaped a filibuster by but a hair. The vote was so tight in the house — 219 to 212 — that the leadership went through byzantine maneuvers to get the measure to the president’s desk. No Republicans voted for it when it came up in the House, and the drive to repeal the measure began the day after Mr. Obama signed the measure.

It is the aspersions the President cast on the Supreme Court, though, that take the cake. We speak of the libel about the court being an “unelected group of people” who might “somehow overturn a duly constituted and passed law.” This libel was dealt with more than two centuries ago in the newspaper column known as 78 Federalist and written by Alexander Hamilton. It is the essay in which Hamilton, a big proponent of federal power, famously described the Court as “the weakest of the three departments of power.” It argued that the people could never be endangered by the court — so long as the judiciary “remains truly distinct from both the legislature and the Executive.”

It was precisely the separation of the courts from the other two branches, Hamilton argued, that gives the court its legitimacy.

With his statement, President Obama Goes on Record Opposing Marbury v. Madison.

Q&O:

it isn’t the job of the Supreme Court to do the job of Congress. Instead, its job is to determine whether or not what Congress has done is compliant with the limits the Constitution places on it. That’s it. There is nothing which requires the Supreme Court to “fix” laws that Congress has passed.

Ruth Marcus:

Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”

So the joint press conference with Felipe Calderón and Stephen Harper accomplished…what?
1. Obama’s going after the Supreme Court as his bête noire, knowing they cannot respond.

2. It showed that the President needs a remedial course in judicial review.

and,
3. It demonstrated to Mexico and Canada that they are mere side ornaments when it comes to Obama’s priorities: Critical issues that involve the three countries count for nothing.

Why is the TPP critical now?

Canadian officials have said that they have been willing to put everything up for negotiation—including, some officials say, dairy products and other issues such as a U.S. push for Canada to increase intellectual-property protections.

TPP joins a list of recent points of tension in the world’s largest trade relationship. Canadians were angered by “Buy America” provisions in last year’s U.S. stimulus plan, new surcharges imposed on Canadians traveling to the U.S. and regulatory delays in approval for the Keystone pipeline, a massive project to move crude from the oil sands of Alberta to U.S. refineries.

But hey, after his next election Obama will have more flexibility.

As a side note,
When you read the full transcript, note the condescending tone towards Calderón (“Felipe, Stephen and I are proud to welcome you here today”).

UPDATE,
Don’t miss Judidical activism for me, but not for thee

John Hinderaker analyzes Kagan on Partial-Birth Abortion, Take Two. After quoting the exchange between Orrin Hatch and Elena Kagan, Hinderaker writes,

Let’s break that down. First, Kagan was a vigorous advocate for partial-birth abortion. Her memo to her superiors in the Clinton administration said that it “would be disaster” if the ACOG report came out in its original form, saying that the panel “could identify no circumstances under which [the partial-birth] procedure … would be the only option to save the life or preserve the health of the woman.” Today, Kagan tried to spin that statement, but her attempt was disingenuous. In her memo, she obviously referred to the political consequences if this respected physicians’ group were to acknowledge that partial-birth abortion is never medically necessary–that was the “disaster” that she tried to avert.

Second, in my post yesterday, I misunderstood one fact. I thought that Kagan’s “suggested option,” “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” was substituted for the ACOG panel’s original language, “[we] could identify no circumstances under which [the partial-birth] procedure … would be the only option to save the life or preserve the health of the woman.” That was not correct; rather, as Kagan said, both of those sentences were included in the final version of the report. While they certainly point in opposite directions, they are not technically inconsistent.

Third, Kagan’s responses failed to deny the essence of the scandal. On the contrary, she admitted that on behalf of the Clinton administration, she worked behind the scenes to influence the supposedly “scientific” verdict of the ACOG so as to make it more friendly to partial-birth abortion. Her claim that she was merely trying to “clarify” or remind ACOG of what that group really thought is a classic lawyer’s dodge. It stands unrebutted that Kagan drafted pro-partial-birth abortion language and sent it to an ACOG political operative, with the result that Kagan’s language was included in the final version of the panel’s report, even though Kagan is not an obstetrician or gynecologist, and has no expertise in any relevant field. Rather, Kagan was acting as a political representative of the Clinton administration.

This is tremendously important. The ACOG report played a vital role both in public opinion about the partial-birth abortion issue, and in the federal courts’ approach to that issue.

Shannen Coffin is more specific:

There is little question that Kagan’s edit changed the substance of the ACOG statement, not merely its policy implications. Previously, the draft had read that there were no suchmedical circumstances in which it was the only method to save the health or life of a woman; Kagan inserted language to water down or hedge thatmedical opinion, asserting — notwithstanding what her notes had shown regarding the lack of evidence regarding such circumstances — that the procedure still “may be the best or most appropriate procedure in particular circumstances.” That is not a statement of policy; it is a statement ofmedical opinion.

Any attempt to downplay the significance of these revisions misses the mark. Remember that it was Kagan’s specific language the Supreme Court seized upon in striking down the Nebraska ban. As that opinion concluded, “Casey’s words ‘appropriatemedical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion — differences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists’ statements together indicate are present here.” The Court relied on ACOG’s policy statement (which ACOG expanded on in its amicus brief) to find a division of medical opinion

Hinderaker concludes,

Ms. Kagan’s career appears to be that of a left-wing political operative, not that of a lawyer or legal scholar devoted to an objective application of the laws.

Go read both links in full.

President Obama has nominated a lawyer with no judicial experience to the Supreme Court:
NBC: Obama to name Kagan for high court
1st female solicitor general served as White House adviser under Clinton

Kagan would be the first justice without judicial experience in almost 40 years. All of the three other finalists she beat out for the job are federal appeals court judges, and all nine of the current justices served on the federal bench before being elevated. The last two justices who had not been judges, William Rehnquist and Lewis Powell, joined the Supreme Court in 1972.

William Jacobsen finds a supreme irony in the nomination: Supreme Irony – Kagan Nomination Ends Gay Marriage Hopes

But on one issue of critical importance to the left — the constitutional right to same-sex marriage, Kagan has staked out a very clear and unequivocal position: There is no constitutional right to same-sex marriage.

In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.
…
This doesn’t mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.

While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.

Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.

The Washington Post touts her lack of judicial experiece, saying Elena Kagan never let lack of experience hold her back. Hail the SCOTUS bureaucrat:

“She knows government, and she knows how to run institutions.”

UPDATE
SCOTUS blog has 9750 Words on Elena Kagan
More than you ever wanted to know, via TigerHawk

——————————————-
I must meet a deadline this morning, therefore there will be no podcast today. Thank you for your support.

President Obama has nominated a lawyer with no judicial experience to the Supreme Court:
NBC: Obama to name Kagan for high court
1st female solicitor general served as White House adviser under Clinton

Kagan would be the first justice without judicial experience in almost 40 years. All of the three other finalists she beat out for the job are federal appeals court judges, and all nine of the current justices served on the federal bench before being elevated. The last two justices who had not been judges, William Rehnquist and Lewis Powell, joined the Supreme Court in 1972.

William Jacobsen finds a supreme irony in the nomination: Supreme Irony – Kagan Nomination Ends Gay Marriage Hopes

But on one issue of critical importance to the left — the constitutional right to same-sex marriage, Kagan has staked out a very clear and unequivocal position: There is no constitutional right to same-sex marriage.

In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.
…
This doesn’t mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.

While it is not clear what view the other Justices have, it is likely that a Kagan on the Court will put an end to any ultimate chance of success in the federal lawsuit lawsuit filed by David Boies and Ted Olson to have California Prop. 8 declared unconstitutional.

Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.

The Washington Post touts her lack of judicial experiece, saying Elena Kagan never let lack of experience hold her back. Hail the SCOTUS bureaucrat:

“She knows government, and she knows how to run institutions.”

UPDATE
SCOTUS blog has 9750 Words on Elena Kagan
More than you ever wanted to know, via TigerHawk

——————————————-
I must meet a deadline this morning, therefore there will be no podcast today. Thank you for your support.

Zsa-Zsa gets it, for the second time in a week:
Will, Roberts and Donaldson Correct Arianna Huffington on ‘This Week’:

Appearing on Sunday’s “This Week” on ABC, Huffington foolishly claimed that Supreme Court justices John Paul Stevens and David Souter would never be appointed by a Republican President today due to “how far the Party has traveled,” obviously meaning to the Right.

All three of her fellow Roundtable panelists were quick to correct her flawed logic beginning with Sam Donaldson (video follows with partial transcript, relevant section at 9:20)

Check out the transcript at NewsBusters. Here’s the video:

Arianna forgot that Stevens was a conservative when he joined the Court.

From Obama’s speech:

It’s time to put strict limits on the contributions that lobbyists give to candidates for federal office.

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people.

Justice Alito mouthed “Not true” to that statement:

Bradley Smith explains why the President is wrong:

Tonight the president engaged in demogoguery of the worst kind, when he claimed that last week’s Supreme Court decision in Citizens United v. FEC, “open[ed] the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”

The president’s statement is false.

The Court held that 2 U.S.C. Section 441a, which prohibits all corporate political spending, is unconstitutional. Foreign nationals, specifically defined to include foreign corporations, are prohibiting from making “a contribution or donation of money or ather thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State or local election” under 2 U.S.C. Section 441e, which was not at issue in the case. Foreign corporations are also prohibited, under 2 U.S.C. 441e, from making any contribution or donation to any committee of any political party, and they prohibited from making any “expenditure, independent expenditure, or disbursement for an electioneering communication… .”

This is either blithering ignorance of the law, or demogoguery of the worst kind.

It was certainly unexpected (to borrow a frequently used word) to have a President badmouth a Constitutional decision: Randy Barnett,

In the history of the State of the Union has any President ever called out the Supreme Court by name, and egged on the Congress to jeer a Supreme Court decision, while the Justices were seated politely before him surrounded by hundreds Congressmen? To call upon the Congress to countermand (somehow) by statute a constitutional decision, indeed a decision applying the First Amendment? What can this possibly accomplish besides alienating Justice Kennedy who wrote the opinion being attacked. Contrary to what we heard during the last administration, the Court may certainly be the object of presidential criticism without posing any threat to its independence. But this was a truly shocking lack of decorum and disrespect towards the Supreme Court for which an apology is in order. A new tone indeed.

In that sense, you can call Obama’s speech “historic”.

More discussion on the State of the Union Address with special guest Moe Lane in this morning’s podcast at 11AM Eastern.

Yesterday at McClatchy:
Sotomayor backers urge reporters to probe New Haven firefighter

Supporters of Supreme Court nominee Sonia Sotomayor are quietly targeting the Connecticut firefighter who’s at the center of Sotomayor’s most controversial ruling.

On the eve of Sotomayor’s Senate confirmation hearing, her advocates have been urging journalists to scrutinize what one called the “troubled and litigious work history” of firefighter Frank Ricci.

What is “troubled and litigious work history”, pray tell?

Specifically, the advocates have zeroed in on an earlier 1995 lawsuit Ricci filed claiming the city of New Haven discriminated against him because he’s dyslexic. The advocates cite other Hartford Courant stories from the same era recounting how Ricci was fired by a fire department in Middletown, Conn., allegedly, Ricci said at the time, because of safety concerns he raised.

The Middletown-area fire department was subsequently fined for safety violations, but the Connecticut Department of Labor dismissed Ricci’s retaliation complaint.

Politics of personal destruction didn’t take long: Today at Salon, Dahlia Lithwick is already saying, Fire Proof: The New Haven firefighter is no stranger to employment disputes.

The NYT has an article on Ben Vargas (h/t Volokh, another one of the firefighters who were denied promotion over Sotomayor’s decision. Like Sotomayor, Vargas was born and raised in the Continental US of Puerto Rican parents.

How Ricci almost disappeared:

…by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case — which ended up producing one of the Supreme Court’s most important race decisions in many years — had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

Read the rest (and here’s Judge Jose Cabranes bio)

Following up on the Safford Middle School strip search case, an 8-1 decision:

Supreme Court Rules School’s Strip Search of Girl Was Illegal

The Supreme Court ruled today that Arizona school officials violated the constitutional rights of a 13-year-old girl when they subjected her to a strip search on the suspicion she might be hiding ibuprofen in her underwear.

The court ruled 8-1 that such an intrusive search without the threat of a clear danger to other students violated the Constitution’s protections against unreasonable search or seizure.

Lyle Denniston, writing at SCOTUS blog points out that :

The new rule is that searching students’ inner clothing, with exposure of their bodies, will be extremely difficult — though not impossible — to justify.
…
The other constitutional rule — searches of public school students’ backpacks, notebooks, other belongings, outer clothing, and pockets are generally allowed if they are based on “reasonable suspicion” — remains as it has for a quarter-century, but with a small amount of refinement, the exact scope of which is not quite clear.

And,

Thursday’s decision only applies to future searches, so the Constitution does not provide them a remedy.

And, hopefully, this will prevent cavity searches, too.

You can read the decision here (h/t Reason).

I spent this rainy afternoon at Princeton’s Mudd archives, where the senior thesis are kept, reading Sonia Sotomayor’s 1976 senior thesis, La Historia Cíclica de Puerto Rico: The Impact of the Life of Luis Muñoz Marín on the Political and Economic History of Puerto Rico, 1930-1975.

Since I was born and raised in Puerto Rico and I am very familiar with the island’s politics in the 1970s, I thought it would be interesting to read what she had to say.

First for a little background:
Back in the 1970s, the independence movement was relatively popular among a minority of Puerto Ricans. In the referendum prior to Sotomayor’s thesis, the independence movement received 6% of the vote. Young people who studied abroad, particularly those in Ivy League schools (many studying law), were fond of talking about independence and referred to the island as a “colony”. I have never considered myself a “colonial”, and for the most part ignored that rhetoric. That modicum of popularity for independence has declined: In the 2008 election, the Puerto Rican Independence party had so few votes they will need to register the party again if they want to run a candidate for governor.

The thesis:
The thesis is exactly what it says in the title, a political and economic history of the island focused on former governor Luis Muñoz Marín. It has a four-page preface, 148 pages of text and footnotes, and an additional 21 pages of bibliography and reference material.

On page ii of the preface, she says, “I do not disclaim in this thesis that I do not reflect my own bias toward independence for Puerto Rico,” and on page 98, “Unlike the labeled “socialism” philosophy of the 1940s, Operation Bootstrap was based on a negation of self-sufficiency and an acceptance of utter dependency on the colonial master, the United States.”

I pay particular attention to these two statements since Stuart Taylor Jr pointed to them in his Tuesday post (h/t The Corner). Taylor quotes award-winning history professor K.C. Johnson of Brooklyn College and CUNY Graduate Center, who said,

First, I’m curious as to when Sotomayor ceased being a Puerto Rican nationalist who favors independence — as she says she does in the preface. (The position, as she points out in the thesis, had received 0.6 percent in a 1967 referendum, the most recent such vote before she wrote the thesis.) I don’t know that I’ve seen it reported anywhere that she favored Puerto Rican independence, which has always been very much a fringe position….

There is nothing in the thesis that I could find to indicate that the young Sotomayor, while favoring independence back then, would have advocated anything other than legal and democratic means towards that goal.

My question is, how important is that now, 33 years after the fact? Since she was never a resident of Puerto Rico, one can safely assume that she never participated in Puerto Rican politics. Does she favor independence now? How important is that? Under what circumstances would a Justice have any power to decide on the status of Puerto Rico?

Professor Johnson correctly points out that

she asserted that Muñoz Marín’s economic program, called Operation Bootstrap, failed primarily because Puerto Ricans continued to think of themselves as colonials. This … was 1970s-trendy dependency theory rhetoric, but was wholly unsupported by the evidence that she presented in the thesis (and, indeed, by virtually any evidence that has appeared since that time).

However, I must respectfully disagree with Prof. Johnson in this,

her unwillingness to call the Congress the U.S. Congress is bizarre — in the thesis, it’s always referred to as either the ‘North American Congress’ or the ‘mainland Congress.’ I guess by the language of her thesis, it should be said that she’s seeking an appointment to the North American Supreme Court, subject to advice and consent of the North American Senate. This kind of rhetoric was very trendy, and not uncommon, among the Latin Americanist fringe of the academy.

While the Latin Americanists to this day are fond of referring to the USA as the North Americans, Sotomayor, on chapter 2, page 7, is discussing the US Congress and the Puerto Rican Congress in the same paragraph. She differentiates between the two on footnote 1:

North American “mainland” and “federal” throughout this paper will refer to the United States and its fifty states excluding Puerto Rico. This [entomology CORRECTION] etymology is accepted as appropriate labels throughout Latin American and Puerto Rican literature. Puerto Rico will be referred to as “island” or “insular.”

She did need to clarify between the two congresses, as she discussed in her thesis a 1909 confrontation between the Puerto Rican congress and the mainland, which was resolved when the US legislature broke the impasse. However, she does refer to the United States by name throughout the thesis.

And that was thirty-three years ago.

Clearly not a “colonial”, Sandra Sotomayor is now nominated to the SCOTUS.

The issues that I consider most important what is her record on jurisprudence and upholding the Constitution, and let’s ask about what those “wise Latina” statements convey on how she decides on a legal issue.