Is Elana Kagen SCOTUS nomination in trouble ?

Republican filibuster possible ...

Sessions on Kagan [Robert Costa]

Washington, D.C. — After wrapping up the third day of Elena Kagan’s confirmation hearings, Sen. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, tells National Review Online that he has “growing concerns” with President Obama’s Supreme Court nominee. “This nominee needs to address several very serious questions about the accuracy of her testimony, about whether she lets her personal agendas drive what she does,” Sessions says.

“She does not have the rigor or clarity of mind that you look for in a justice on the Supreme Court,” Sessions says. “She is personable, people-oriented, and conciliatory, yet she lacks a strict, legal approach. You want a mind on the court. She’s charming, delightful, and personable, but I don’t see that there.”

Sessions points to Kagan’s handling of the military’s “don’t ask, don’t tell” law while solicitor general as a major problem area. He wonders why she did not take action on two cases in which “don’t ask, don’t tell” was challenged. Kagan, for her part, defended her decisions, saying she acted “consistently with the responsibility” to “vigorously defend all statutes.”

Sessions is not convinced. “I have become more troubled after today,” he says. “On really tough matters, she becomes very political and acts less in a principled, lawful manner and more in a manipulative, political manner. That’s not what you need on the Supreme Court.” (More about this exchange from Ed Whelan here.)Sessions adds that Kagan’s responses about her association with a controversial partial-birth-

abortion memo (which Shannen W. Coffin wrote about here) “are another example” of the “nominee’s troubles.”“That document seems to indicate pretty clearly that she got panic stricken when the president got ready to sign the partial-birth-abortion bill,” Sessions says. “She went into high-speed action to talk him out of it.”


Coburn Calls Kagan 'Ignorant' on Commerce Clause, Says Filibuster Possible [Daniel Foster]

After a line of questioning on the Commerce Clause in which Elena Kagan appeared to embrace near limitless Congressional authority to regulate economic activity, Sen. Tom Coburn (R., Okla.) had strong words for ABC News, calling Kagan "ignorant" of relevant constitutional principles:

“I think the thing that's very worrisome is that she has a very expansive view of the Commerce Clause, and I find that she's ignorant of the Constitution's limitation of that, especially what our Founders wrote,” Coburn, R-Okla., told us.

“And her reliance was that, ‘Well, here's the precedent that's been set, and we can't go back to original intent,’ which comes back to another thing that she said earlier in the hearing — is that precedent trumps original intent. And I think most Americans would reject that. If that was the case, then we would have never had Brown vs. the Board of Education, and Plessy-Ferguson would still be the law. And to have a Supreme Court nominee that actually says precedent trumps original intent is worrisome, in my opinion.”

Coburn also said that Kagan could be filibustered:

“I wouldn't rule out a filibuster,” he said. “Look, my two main concerns are …: We're in trouble as a nation, and one of the reasons we're in trouble is the expansion of the federal government into areas that our Founders never thought we should be in. And we have a nominee to the Supreme Court that is fully embracing that and with no limits in terms of the Commerce Clause. So to me, that's very concerning. The second point I would make, again, is that she believes precedent trumps original intent. And she defended that. And so that — both those things are very concerning — should be very concerning to the American people.”
Full story here.



Kagan’s Explanation [Shannen Coffin]

I was unable to watch Kagan’s explanation of her role in the ACOG policy statement live, but I understand from Ed Whelan’s excellent coverage that she essentially brushed off the issue (as I predicted here she would), explaining that she was merely helping ACOG state more clearly what the evidence before it already showed. As I explained, however, there are reasons to doubt that. First, the ACOG task force — formed specifically and solely for the purpose of studying the medical efficacy of the procedure — met for two full days in October 1996, and the result of their collective work was a statement concluding only that it could identify no particular circumstances where the partial-birth method might be the only method to save the health or life of the mother, but that the committee thought it important to leave that judgment to the individual doctors — that is, a policy statement that Congress should stay out of it. After they deliberated in October 1996, the task force forwarded its draft statement to the ACOG board. It was only then that Kagan stepped in to suggest changes.Therefore, any suggestion that her work was merely the synthesis of the task force’s deliberations doesn’t account for that time line — she had no interaction with the task force itself, only the executive board of ACOG. Second and more significant, the White House had already met with ACOG’s former president and current chief lobbyist (to whom Kagan’s revisions were addressed) in June 1996, before the special task force was even formed. At that meeting (which apparently Kagan did not attend but recounted in a memo to her bosses, dated June 22, 1996), Kagan wrote that the White House staffers were basically told that ACOG couldn’t identify any particular circumstances where the procedure was medically necessary. But, to be fair, let’s quote her memo in relevant part:

2. Melanne, Todd, Jennifer Klein, John Hart, and someone from Betsy Myers’s office met a few days ago with the former President and the current chief lobbyist for the American College of Obstetrics and Gynecology (ACOG). For many months, the folks at ACOG had been unwilling to speak with us about the medical issues surrounding the partial birth ban, but Marilyn Yeager convinced them to do so, and this meeting was the result. It was something of a revelation.Two important points emerged from the meeting. First, there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated. In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health; another option — whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term — is equally safe .. I will spare you all the medical details here. Suffice it to say that we went through every circumstance imaginable — post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc. — and there just aren’t many where use of the partial-birth abortion is the least risky, let alone the “necessary,” approach. No one should worry about being able to drive a truck through the President’s proposed exception; the real issue is whether anything at all can get through it.

Second and relatedly, of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth procedure was the least risky of their alternatives. Again, I’ll spare you the details, but the other three — all of whom were carrying malformed fetuses in the third trimester — could have given birth, either through induction or through carrying the fetus to term, without serious risk to their health. (The partial birth procedure in these cases was the least risky method of abortion, but this is not a strong argument, given that all these fetuses were post-viability -when most states, and the President himself, would prohibit all abortions except for life or health reasons.)

Those present at the meeting all agreed, on the basis of the thoroughness and care of the ACOG presentation, that these two points are probably just true, rather than a matter of medical opinion. (Betsy Myers and Jeremy Ben-Ami, neither of whom attended the meeting, have expressed the view that some other doctor might say something different.)At the same time, none of us think that this information should cause us to change the standard the President has articulated or the rhetoric he has used. The letters and written materials we have used are really pretty accurate — even though the proposed amendment the President has offered would allow fewer abortions than we knew. So too for the President’s oral statements. Melanne believes that an appropriate time, prior to the debates or when the veto becomes an issue again, we should make sure the President knows that some of the women’s stories are tighter than others; otherwise, she sees no need for any further briefing. I agree, but I also would keep a close eye out for — so we can clamp down quickly on — any extension of our rhetoric, whether by the President or others.


Congressman Smith vs. Kagan [Robert Costa]

Washington — Shannen Coffin’s NRO article on Elena Kagan and abortion has Capitol Hill abuzz. Rep. Chris Smith (R., N.J.) tells us that the article shows an “outright fraud perpetuated on the American people.”

“She manipulated the American College of Obstetricians and Gynecologists for total political purposes,” Smith says. “She’s totally pro-abortion, yes, but she’s also deceptive, and that’s a very bad combination.”The Senate GOP should “press this aggressively,” Smith says. “It’s a character issue.” Smith says he will share the Coffin piece with more of his colleagues today.



More on Kagan and Partial-Birth Abortion [Shannen Coffin]
One of the defenses of Kagan’s revisions to the ACOG statement is that they really were just editorial, that they didn’t change the thrust of the statement. Let’s look at that argument.The statement, prior to Kagan’s edits, reads in relevant part as follows: “However, a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.” Kagan did not delete that sentence (and I never suggested she did). It remained in ACOG’s final statement. What she changed was the following sentence, which had read: “Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based on the woman’s particular circumstances.” That innocuous statement is little more than a statement of policy; ACOG was simply saying that, notwithstanding their inability to find any medical circumstances in which the procedure would be the only appropriate procedure, the medical association’s board concluded that the doctor should still have medical discretion to use the procedure, and a legislature shouldn’t get involved. Fair enough. What Kagan did was insert a statement of medical opinion into that sentence. Her full suggested edit was: “An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination.” ACOG’s final statement adopted the first half of that sentence in toto. The final sentence read: “An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision.” 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 such medical 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 that medical 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 of medical 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 ‘appropriate medical 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:
For another thing, the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly qualified knowledgeable experts on both sides of the issue. Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary. Rather, the uncertainty means a significant likelihood that those who believe that D&X is a safer abortion method in certain circumstances may turn out to be right. If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences. If they are wrong, the exception will simply turn out to have been unnecessary.
Again, in Gonzales v. Carhart (the later case upholding the federal ban), Justice Ginsburg’s dissent cited ACOG more than half a dozen times. The first citation, in the introduction to her opinion, decried the majority for disregarding ACOG’s opinion: “Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).”There is little question that ACOG was going to say whatever it took to get the ban struck down. Its amicus brief did its best to identify circumstances where the method was the best or most appropriate — although those allegations were never tested in the Stenberg litigation, which raises serious questions about the creation of “evidence” in amicus briefs. But there is also little question that the involvement of a White House policy staffer in the process tainted the reliability of ACOG’s supposedly nonpartisan medical opinion. Kagan’s edits were designed to assert a medical opinion that was completely at odds with the draft she had been given. She recognized that the draft statement would be a “disaster” — so, in her own view, her edits were necessary to avert that disaster.

Kagan - SCOTUS hearings, issues

http://www.washingtonexaminer.com/opinion/Kagan-is-no-Justice-Tabula-Rasa-97337839.html

Kagan's Manipulation [Shannen Coffin]

I generally don't comment on Supreme Court nominees by Democratic presidents, since it's not good business to be trashing judges who may be the deciding vote in some future case I have before the Court. (Yeah, a portrait of courage, I know).

But I make an exception this morning to highlight Elena Kagan's role, while a White House policy staffer, in writing what was sold to the Courts as a statement by a non-partisan medical association (the American College of Obstetricians and Gynecologists) on the medical necessity of "so-called" (the media's favorite qualifier) partial-birth abortion. Kagan played a central role in drafting language that was used by proponents of the abortion method to convince the Courts that the method was necessary and should not be banned.

Her role was never disclosed to the Courts, which relied on the very language she drafted in striking down partial-birth bans. It is an important story, and raises numerous questions about Kagan, about the abortion lobby, and the manipulation of science and the law.


Hatch on Blanche [Daniel Foster]

Cut-and-pasted from the live blog:

10:56 A.M.: Kagan won't answer whether she personally believes aspects of the Citizens United decision, especially whether restrictions on free speech based on the identity of one party (corporations, and unions) are often designed to restrict the content of that speech.

Kagan says campaign finance laws were "selfless" act of Congress, because all empirical evidence suggests union and corporate money protects incumbents.

"Tell that to Blanche Lincoln," Hatch says. "Lincoln is one of the nicest people around here who had ten million spent against her by the unions, just because they disagreed with her."


The War on Science [Yuval Levin]

If you haven’t read Shannen Coffin’s piece on Elena Kagan and the partial-birth-abortion debate today, you really should. What he describes, based on newly released Clinton White House memos, is absolutely astonishing.

It seems that the most important statement in the famous position paper of the American College of Obstetricians and Gynecologists—a 1996 document that was central to the case of partial-birth-abortion defenders for the subsequent decade and played a major role in a number of court cases and political battles—was drafted not by an impartial committee of physicians, as both ACOG and the pro-abortion lobby claimed for years, but by Elena Kagan, who was then the deputy assistant to the president for domestic policy.

Kagan saw ACOG’s original paper, which did not include the claim that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” but, on the contrary, said that ACOG “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” She wrote a memo to two White House colleagues noting that this language would be “a disaster” for the cause of partial-birth abortion, and she then set out to do something about it. In notes released by the White House it now looks as though Kagan herself—a senior Clinton White House staffer with no medical background—proposed the “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman” language, and sent it to ACOG, which then included that language in its final statement.

What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered. A White House official formulating a substantive policy position for a supposedly impartial physicians’ group, and a position at odds with what that group’s own policy committee had actually concluded? You have to wonder where all the defenders of science—those intrepid guardians of the freedom of inquiry who throughout the Bush years wailed about the supposed politicization of scientific research and expertise—are now. If the Bush White House (in which I served as a domestic policy staffer) had ever done anything even close to this it would have been declared a monumental scandal, and rightly so.

Apparently scientific integrity only matters as long as it doesn’t somehow infringe on abortion. That, of course, was always the lesson of the stem-cell debate in the Bush years anyhow. But clearly it started earlier. It’s good to know where Kagan’s priorities are. Let’s hope senators are paying attention.


Some A-B-C on Justice-to-Be Kagan [Jay Nordlinger]

Would just like to say a quick word about the nomination of Elena Kagan to the Supreme Court.

As we all know, elections, like ideas, have consequences. And the American people elected Barack Obama to the presidency. Therefore, we will get Supreme Court nominees like Sonia Sotomayor and Elena Kagan. We’re maybe lucky we didn’t get worse (in the case of Kagan; I regard Sotomayor as pretty much bottom-of-the-barrel, a paragon of left-wing legal-political correctness). With a big Democratic majority in the Senate, there’s essentially nothing we can do about these nominees. Obama has nominated the type of people you would nominate, if you were Obama. They reflect an Obama attitude toward law and society. And these ladies will be on the Court for a long, long time — longer than the Maine ladies (I love that phrase, for some reason) will be in the Senate.

Conservatives can consider themselves lucky that Sotomayor and Kagan have replaced liberal jurists, not conservative ones.

If the public doesn’t like the Obama sort of Supreme Court nominee, it has two options: elect a conservative majority to the Senate; vote Obama out of office. Both would be fine!

You can always count on me for the elementary or obvious stuff. One more word, concerning what conservative senators should do — do now. They should make all the points they can, as the hearings unfold — get their points of view across. Speak to the public. And then, when it comes time to vote . . . what?

Should conservatives observe the Obama principle? Or should they abide by some other standard? This is the Obama principle, as I see it: When he was in the Senate, he voted against both John Roberts and Samuel Alito. He said, in essence, “They are perfectly well qualified, in the traditional ways. But I’m not a traditional guy. They are conservative. Therefore, in my estimation, they are unfit to serve on the Supreme Court.”

Should conservative senators do that? Should they say, “Sure, so-and-so may be conventionally qualified — she doesn’t drool — but she’s a liberal”? Is tit-for-tat justified?

Or should conservatives rise above the Obama standard and say, “No, a president is entitled to his picks, and as long as they’re within some general, American pale — as long as they’re plausible — they’re okay”?

I haven’t totally settled that one, for myself. If I were in the Senate — why is no one urging me to run, why is no one raising funds? — I would.

Will SCOTUS Nominee Kagan's Paper Trail see the light of day ?

Byron York wants to know:

http://www.washingtonexaminer.com/politics/Will-the-Senate-see-Kagan_Ss-long-paper-trail_-93725434.html

New Obama SCOTUS Nominee

No fingerprints ? Some commentary here ...

http://www.washingtonpost.com/wp-dyn/content/article/2010/05/11/AR2010051103192.html

http://online.wsj.com/article/SB10001424052748704250104575238352553148916.html?mod=WSJ_Opinion_LEFTTopOpinion

http://www.investors.com/NewsAndAnalysis/Article.aspx?id=533720

http://www.washingtonpost.com/wp-dyn/content/article/2010/05/11/AR2010051104341.html

Obama Disses the Supreme Court in SOTU

Charles Krauthammer comments On President Obama vs. Supremes at the State of the Union:

The president attacked the Supreme Court at the State of the Union, which I believe is unprecedented. I thought [it] was a breach of etiquette.

The court actually is at that event not for pleasure and not even as a duty — it's not required — but as a sign of respect for the other branches, for the presidency and the Congress. And to subject it to a direct attack in a setting in which it can't respond, I thought, was a breach of etiquette which shouldn't have happened.

On the substance, when the president said that it [the Court] was breaking a 100-year precedent, it was wrong. As even Linda Greenhouse, the liberal Supreme Court reporter of the New York Times pointed out, the ruling 100 years ago was the prohibition of a direct sending of money from corporations into the treasuries of candidates. That remains illegal. It was not touched in this decision. So there was no overturning of that precedent. What it dealt with is a question of corporations funding speech attacking a candidate.

And the court in its decision had said that it was not dealing with that issue [of foreign funding]. Which means: If it wasn't, [then] the existing statute, which prohibits it [foreign funding], stands. So I think he was wrong on the substance as well as the precedent here.

Sotomayor -- SCOTUS hearings update

An Unpublished Summary Order Can't Be Defended in Ricci [Andy McCarthy]

Judge Sotomayor continues to try to defend the manner in which her panel buried the Ricci case by unpublished summary order. She claims that she was operating under clear precedent — but there wasn't clear precedent, and her peremptory order didn't cite any. But let's give her that one. Sotomayor has issued scores of opinions on legal issues in which the outcome was clear, controlled by obvious precedent — that didn't stop her from writing an opinion.

Now consider this. The Ricci case was widely deemed to be the most important discrimination case to come before the Second Circuit in years — perhaps decades. As Judge Cabranes pointed out in his dissent from the full Second Circuit's decision not to rehear the case, Ricci featured "unusually lengthy briefs from the parties, amicus briefs, an 1,800-page record, and an hour of oral argument, all well beyond the norm" (most arguments before the Second Circuit are about ten minutes per side).

You can argue the result in Ricci. You can't defend burying the case without a published, reasoned decision.


What Is 'Settled' Law? [Andy McCarthy]

Judge Sotomayor answering Senator Hatch [almost a quote]: All decisions of the Supreme Court I consider "settled law" to the extent that the doctrine of stare decisis (respect for precedent) applies.

In other words, all law is settled . . . except when it isn't.


Say What, Sonia? [Andy McCarthy]

Judge Sotomayor testifying this morning: "Most of my cases if not all of them explain why the law requires what it does."

Judge Jose Cabranes describing the opinion of Judge Sotomayor and the rest of the panel in the New Haven firefighter case: the panel gave peremptory treatment to:

significant constitutional and statutory claims of first impression . . . in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination. . . . This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.
When Senator Sessions was grilling Judge Sotomayor on why her panel gave such shoddy treatment to such an important case, the judge kept saying they relied on a "thoughtful 72-page opinion" from the district judge. What she didn't mention was that before her panel attepted to bury the case in an unpublished ruling, the district judge dug the grave by attempting make certain that no one got to see how "thoughtful" the 72-page opinion was — it, too, was unpublished.

This was not an effort to "explain why the law requires what it does"; it was an effort to make the law go away.

Ricci Case post game analysis; Sotomayor; Supreme Court

Good editorial from NRO:

Reckoning with Ricci [NRO Staff]
Our editorial this morning:

The Supreme Court ended its term on Monday by ruling that the City of New Haven’s intentional discrimination against 20 mostly white firefighters — denying them promotions after they had received the highest grades on qualifying examinations — violated federal law. Honoring the principle of equality under the law, the Court’s much-anticipated decision in Ricci v. DiStefano awarded judgment in favor of the firefighters, reversing lower court rulings that had peremptorily dismissed the case.

The Court also honored the principle of judicial restraint. The ruling, authored by Justice Anthony Kennedy and joined by the Court’s conservative bloc (Chief Justice Roberts, and Justices Scalia, Thomas, and Alito), resolved the case strictly under the governing statute, the Civil Rights Act of 1964, as amended in 1991. The justices left for another day the core constitutional question of whether the Civil Rights Act’s “disparate impact” provisions — which sometimes require race-conscious remedies — are valid under the Fourteenth Amendment’s equal-protection clause.

The decision is a sharp rebuke for Second Circuit Judge Sonia Sotomayor, Pres. Barack Obama’s nominee to replace Justice David Souter when the Supreme Court convenes in October. Justice Ruth Bader Ginsburg filed a dissenting opinion that was joined by the Court’s three other reliable liberals (Justices Stevens, Souter, and Breyer), and thus administration spinners are already whirring about how the 5-4 majority purportedly shows that Sotomayor’s handling of the case was in the mainstream.

That rhetorical sleight of hand, however, misstates both the facts and the nature of the complaint against Sotomayor.The only consensus the nine justices found was that the handling of case by Sotomayor’s three-judge appeals-court panel was shoddy. Even the four dissenting justices agreed that the Second Circuit applied the wrong legal standard.

The majority was less charitable, rehearsing the machinations by which the lower courts tried to bury the firefighters’ discrimination claims: While conceding evidence of intentional discrimination, a district judge disposed of the claims in an unpublished order, which Sotomayor’s panel then rubber-stamped in an unpublished summary order of its own. That maneuver prompted a withering protest from Second Circuit judge Jose Cabranes, a highly respected Clinton appointee, who was startled at his court’s cavalier treatment of such profound legal issues.

Judge Cabranes was prophetic. Even without reaching the constitutional question at the heart of the dispute, the case generated four opinions, totaling 93 pages, from the nation’s highest court. Sotomayor had not thought the claims worth discussing at all. Furthermore, that Sotomayor had reached the wrong result was never the main point of contention. It was her frivolous manner of addressing weighty issues — evidence that, as Edward Whelan observed at NRO’s Bench Memos, “the ugly flip side of [Sotomayor’s] selective empathy towards certain favored litigants is selective antipathy towards disfavored litigants.”

Obviously, the decision is bad news for both Sotomayor supporters and New Haven officials, who (as detailed in a hair-raising concurrence by Justice Alito) worked frantically behind the scenes to kill the promotional test results in order to appease influential agitators in New Haven’s black community. Regrettably, businesses across America will also be left unhappy. The ruling, at best, will merely refine future discrimination litigation, not end it. Thanks to the courts and Congress, this area is a morass.

The landmark Civil Rights Act of 1964 targeted intentional discrimination — that is, disparate treatment in employment opportunity based on race, color, religion, sex, or national origin. It did not encompass disparate-impact-discrimination theory, the notion that illegal discrimination should be inferred, even in those cases in which illicit intent cannot be discovered, if employer actions cause outcomes that are uneven by race or the other suspect categories. Disparate-impact discrimination was concocted by the Supreme Court in 1971 and, unfortunately, codified two decades later when President George H. W. Bush signed the Civil Rights Act of 1991 (over this magazine’s objections).

The act’s internal contradictions put employers in a pincer. The law mandates race-conscious remedies if disparate impact suggests discrimination, yet it also prohibits intentional discrimination in employment decisions. An employer must fear being sued both if he unintentionally discriminates and if he takes curative steps that are race-conscious.

Today’s ruling clarifies that the mere fear of being sued will not justify an employer’s intentional discrimination unless there is a “strong basis in evidence” to believe the employer will be liable under disparate-impact discrimination principles. But it won’t make such lawsuits much less frequent or less prohibitively expensive. And for many of these suits, it won’t make resolution any easier. It may be straightforward enough when, as in Ricci, an employer appears to be citing disparate-impact concerns as a pretext to avoid provoking a powerful political constituency. But in other cases, the employer will not be acting pretextually — he will be motivated to take race-conscious remedial action because he fears, in good faith, being found liable.

That is, this case does not settle whether governments can ever be justified in requiring intentional discrimination to address disparate impact — can ever be justified, that is, in picking winners and losers according to race rather than merit — given the Constitution’s command of equal protection. It was proper for the justices to sidestep that question this time. But as Justice Scalia pointed out in his concurrence, the question can’t be sidestepped forever.

Supreme Court overturns Sotomayor decision in Ricci firefighter case ... will it matter for SCOTUS ?

well, it should, as it shows

The White House and its allies are already spinning "it doesn't matter"; "she's in the mainstream" and "Souter dissented, and she's replacing him". All of which are pathetically poor arguments.

Ricci and Sotomayor [Peter Kirsanow]

The Supreme Court in Ricci held that before an employer can engage in intentional racial discrimination (i.e., throwing out the results of the promotional exam in which the highest scorers were white) for the claimed purpose of avoiding or remedying an unintentional disparate impact, it must have a strong basis in evidence to believe it will be subject to disparate-impact liability (not just sued) if it fails to take the race-conscious discriminatory action.

Since Sotomayor and her colleagues summarily dispensed with the white firefighters' arguments, the Supreme Court's opinion provides senators with a host of questions for Sotomayor during the confirmation hearings, starting with whether the nominee even considered arguments pertaining to the promotional exam's job-relatedness.

Given that the Second Circuit affirmed summary judgment for New Haven in relatively cursory fashion, the Supreme Court's Ricci decision is a significant rebuke to how Sotomayor and her colleagues dispensed with the case.


http://voices.washingtonpost.com/supreme-court/2009/06/ricci_decision_provides_rallyi.html?hpid=topnews


Ricci Decision Provides Rallying Point for Opposition

By Jerry Markon and Michael D. Shear

Conservatives are jumping all over today’s Supreme Court decision that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, using it to attack high court nominee Sonia Sotomayor’s earlier ruling against them.

But White House officials are fighting back, and they spent the morning reaching out to Senate Judiciary Committee members to make their case that the ruling should have little bearing on Sotomayor's nomination.

"The issue from the Sotomayor perspective is, does this call into question anything about her judgment? And it doesn't," said one senior White House official. "The majority made it clear they are making a new rule. No one has really questioned that she did what she was supposed to do.’’

The court overturned an earlier order that Sotomayor had endorsed as an appellate court judge, that upheld New Haven’s decision to throw out a promotion test it had given the firefighters when no African Americans and two Hispanics qualified for advancement. The 134-word order has been the flash point of much of the legal debate over Sotomayor’s nomination.

While it is unclear what affect, if any, today's decision will have on Sotomayor's ascension to the high court, Sen. Charles Schumer (D-N.Y.), a senior Judiciary Committee member, said the ruling "in no way undercut" her prospect for confirmation. The committee will begin confirmation hearings July 13.

In a conference call with liberal legal scholars, Schumer argued that Sotomayor and her colleagues on the U.S. Court of Appeals for the 2nd Circuit had followed four decades of labor law precedent. "The 2nd Circuit's opinion was clearly in the mainstream,'' Schumer said. [Bull !]

At a minimum, however, the decision provides an unwelcome distraction from what had seemed like a relatively smooth confirmation process for Sotomayor, and it opened up a renewed line of assault for conservatives.

They wasted no time today in using the decision to paint Sotomayor as a liberal judicial activist.

“The Supreme Court decision repudiating Judge Sotomayor’s legal position in this discrimination case raises important questions about Judge Sotomayor’s judicial philosophy,” said Jay Sekulow, chief counsel of the American Center for Law and Justice. He encouraged senators to explore “the nominee’s views on judicial activism” and her views of the Constitution at the confirmation hearings.

Wendy E. Long, counsel to the conservative Judicial Confirmation Network, issued a statement saying that the firefighters “who protect the public safety and worked hard for their promotions did not deserve to become victims of racial quotas.’’

Casting the decision as a repudiation of Sotomayor, Long added: "Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

White House officials had put in place a plan to deal with the ruling, which they clearly expected. One of their planned talking points was to point out that retiring Justice David H. Souter, whose slot Sotomayor would take, joined the dissent in backing her ruling.

"I think its going to be hard for people to explain why this really should be a confirmation issue for her," the senior White House official said. [Really, now ??]

Washington Post staff writer Paul Kane contributed to this item.

Sotomayor -- brief update

Inhofe on Why He Refuses to Meet Sotomayor [Mark Hemingway]

Sen. James Inhofe's refusal to meet with Supreme Court nominee Sonia Sotomayor seems to have caused some consternation in certain liberal circles; at Talking Points Memo they've accused him of not being "open-minded." I called Inhofe's office hoping to get a better explanation of his reasoning directly, but unfortunately the senator is traveling and I was unable to speak with him. The senator did, however, give me this statement on the matter:

While Judge Sotomayor’s personal history is compelling, I will be voting against her confirmation for two reasons. First, Judge Sotomayor has consistently demonstrated a propensity for legislating from the bench, and a deference for international laws that threaten our nation’s sovereignty. The job of the court is to follow the Constitution and act as an impartial arbiter of the law, not a maker or shaper of the law. This leads to the second reason I will be opposing her nomination. The Supreme Court is a higher position that requires the bar be set higher for her nomination. Her judicial activism led me to vote against her nomination for the 2nd Circuit Court of Appeals in 1998. Given the higher bar, and the fact that her views of the court have not changed, it only stands to reason that I would vote against her once again.

Having determined how I will vote, I declined to meet with Judge Sotomayor out of deference to her busy schedule. She has been very busy meeting with many other Senators, and she still has many more to meet with. I did not wish to waste her time.

Sotomayor updates ......

Sotomayor’s Public Cheerleading for Obama [Ed Whelan]

In a speech that she delivered to the Black, Latino, Asian Pacific American Law Alumni Assocation on April 17, 2009—two weeks before news of the Souter vacancy broke—Judge Sotomayor made a number of references to President Obama that seem surprisingly and disturbingly partisan coming from a sitting federal judge:

“The power of working together was, this past November, resoundingly proven.” (p. 6)

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.” (p. 7)

“On November 4, we saw past our ethnic, religious and gender differences.” (p. 10)

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.” (p. 11)

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.” (p. 13)

Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Sotomayor’s public cheerleading for Obama seems clearly to violate that ethical obligation.


Sotomayor’s “Affirmative Action Plan for Puerto Rico” [Ed Whelan]

The apparent answer to history professor K. C. Johnson’s question (see “Former (?) Puerto Rican Nationalist Nominated to North American Supreme Court”) about “when Sotomayor ceased being a Puerto Rican nationalist who favors independence”: By the time she was in law school and was instead advocating what law professor Roger Alford (on the Opinio Juris blog) calls an “affirmative action plan for Puerto Rico” statehood. Excerpts from Alford’s post about Sotomayor’s law-review piece:

Judge Sonia Sotomayor’s student note in the 1979 Yale Law Journal is a piece of work. It makes an extravagant case for Puerto Rican statehood based on terms of accession that are more favorable to Puerto Rico than any other state in the Union. Her proposal is a sort of affirmative action plan for what she describes as a “small, economically poor dependency” acquired as a result of the “American experience with colonialism.”

While her legal arguments are complex, her economic and political conclusions are simple: Puerto Rico should become a state and accede to the Union in a manner that grants her ownership rights over the offshore oil, gas and mineral deposits within a two-hundred mile radius of Puerto Rico. It should do so despite the fact that no other state enjoys similar rights and despite over two centuries of federal practice that provide for states to enter the Union “on an equal footing with the original States in all respects whatever.” …

In short, in proposing preferential treatment for Puerto Rican statehood, Sotomayor manages to provide justifiable grounds to (1) upset environmentalists; (2) upset those sensitive to the equality of states; (3) upset those opposed to affirmative action and preferential treatment; and (4) upset those who do not take kindly to assertions that the United States is a colonial power. I would think almost every United States Senator falls into at least one of those four categories.

Sotomayor -- Puerto Rican Nationalist ?

Now I like Puerto Rico (great weather, hotels) and Puerto Ricans, but if this stuff is true, it seems disqualifying ..... then again, we do have Hillary and Holder, those pardoners of P.R. terrorists.....

Former (?) Puerto Rican Nationalist Nominated to North American Supreme Court [Ed Whelan]

On National Journal’s new “Ninth Justice” blog, Stuart Taylor passes along history professor K. C. Johnson’s very favorable assessment of Sonia Sotomayor’s senior thesis at Princeton, as well as the “few jarring elements” that Johnson finds, including:

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. . . .

Second, 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.


We've Waived the Right to Press Sotomayor on Being a Puerto Rican Separatist Who Couldn't Bring Herself to Say "United States"? [Andy McCarthy]

Besides Ed's important post below, his separate Bench Memos post is a must read. In it, he notes what is likely to become the Left's mantra on this: namely, that if Sonia Sotomayor's meanderings on Puerto Rican separatism — and her allusion to "North American Congress" and "mainland Congress" because she couldn't bring herself to utter "United States" — were such a big deal, why did Republicans fail to object when she was nominated to the Second Circuit in 1997?

This "waiver" argument is laughable. Judge Bork, of course, was defeated as a Supreme Court nominee after breezing to confirmation for the D.C. Circuit. I'd also note the following:
Justice Alito: confirmed by only 58-42 for the Supreme Court after being unanimously in 1990 for the 3rd Circuit.

Chief Justice Roberts: confirmed by 78-22 after being confirmed for the DC Circuit in 2003 on a voice vote.

Justice Thomas: confirmed by only 52-48 after being confirmed for the DC Circuit in 1989 on a voice vote.

The failure to raise issues in lower court confirmation hearings has never been a bar to raising them for the far more consequential seats on the Supreme Court.

Sotomayor, part II

National Review weighs in ... (ouch !)

http://article.nationalreview.com/?q=ZmJiNzBjYzdhODE4M2ZmNmZiZWNhYzA3Yzc5NDFlOTE=

Advice on Consent
By the Editors

Judge Sonia Sotomayor is female, Hispanic, liberal, and mediocre. Conservatives should draw attention to the third adjective while understanding that the first two are likely to be politically decisive during her confirmation hearings.

Sotomayor’s liberalism would not constitute a reason for denying her a seat on the Supreme Court if it merely consisted of a set of policy positions identical to those of the Senate’s 15 most liberal members. Unfortunately, liberalism has for some time now incorporated a tacit judicial philosophy in which the goal is to impose policies as left-wing as a judge can get away with. Sotomayor seems to march to that beat. More to the point, perhaps, she has shown no signs of marching to any other one.

Judges who decide cases in this manner abuse their office and undermine the rule of law. They also generate policies that are harmful to our economy, dangerous to our national security, and destructive to our social fabric. Liberal activism on the bench has these effects even when the offending judges are geniuses. The nominee’s approach to judging is more important than her IQ, and it is on that subject that senators ought to be trying to shed light. And they should take their time doing it. Thanks to years of activism, Supreme Court justices have more power than most senators. We should spend at least as much time learning how they would exercise it as we do for Senate candidates.

Barring some shocking revelation, we know the outcome of these hearings. Some Republicans say that we could have done worse: Given what we know of her judicial craftsmanship and temperament, she is unlikely to have influence on the Court beyond her vote. But such musings are neither here nor there. The choice for Republican senators is not between Sotomayor and some hypothetical more dangerous Obama nominee; it is between her being confirmed with their consent and her being confirmed without it.

That consent should probably not be given, and should certainly be withheld for now.


Sotomayor: Bad for Business [Iain Murray]

Sotomayor is just as liberal as Souter on social issues like affirmative action and abortion, but far more liberal even than Souter on economic issues, such as punitive damages, preemption, and employment law. The Supreme Court, including Justice Souter, unanimously reversed her decision in the Dabit case, where she allowed lawsuits that were preempted by a federal law (SLUSA).

Business will likely lose billions of dollars over time as a result of her replacing Souter. That probably won’t bother Obama, given that “Obama has regretted that the Supreme Court ‘didn’t break free’ from legal constraints to bring about ‘redistribution of wealth.’”
Judge Sotomayor has managed to take already liberal, redistributionist areas of the law and push them even further down the road in the direction of redistributing wealth to constituencies favored by government offficials. The Supreme Court ruled in the Kelo case that governments can take private property and give it to developers as part of a general redevelopment plan that they rationally believe will benefit the public good (My colleague Hans Bader argued at the time that that violated basic axioms of constitutional construction, and rendered the Constitution’s “public use” clause redundant).

But Judge Sotomayor went well beyond that, to hold that property owners have no legal redress even in the face of what legal commentators have called extortion, in Didden v. City of Port Chester. In that case, a developer told a property owner to either give him $800,000 or half his property, or he would seize it by having the Village of Port Chester condemn it. When the property owner refused, the developer promptly had the town condemn it and transfer it to him. Judge Sotomayor and two of her colleagues upheld this seizure against a constitutional challenge in an unpublished opinion. George Mason University law professor Ilya Somin called this case an example of judicially sanctioned extortion.

Judge Sotomayor has also sided with environmental extremists against businesses, trying to stop the EPA from considering cost-benefit analysis in permitting decisions, another decision that the Supreme Court overturned. See Steve Milloy's Green Hell blog for the full story.
In short, Judge Sotomayor will be much more liberal than Justice Souter when it comes to cases involving business.


Good Justices Are Made in the Image of Obama [Jonah Goldberg]

I just wrote a column about Obama and Sotomayor (it'll be up tomorrow). In the process of reading all this stuff about Obama's criteria for a Supreme Court Justice (blah, blah, empathy, blah blah blah), it occurred to me that maybe what he really wants to do is appoint himself,* or at least the best approximation of himself he can find that politics will allow.

Think about it. He places this huge emphasis on a personal narrative that produces empathy for select disadvantaged groups — minorities, single moms etc. He wants someone who is smart enough, but whose real priorities can be boiled down to trite lefty tropes about "social justice." He allegedly wants someone charming and bipartisan solely so they will seduce conservative members of the court to more liberal positions (I say "allegedly" because you often hear this ascribed to the White House, but never actually stated outright). All of these traits are hallmarks of what might be called "Obamaism."

Now I know that Obama has some very well-thought-out, or at least elaborate, arguments for his idea of a good justice. But isn't it possible that some of this is really just a rationalization for a more fundamental narcissistic projection? After all, it is hardly news that Obama thinks very highly of himself, and sees all sorts of major issues through the prism of Obama. Everything he says about what would make a great, ideal, Supreme Court justice is stuff he clearly sees in himself. I think that is at least interesting.

*Why not cut out the middlewomen and just name himself? Okay, maybe that would be unconstitutional, but he could resign with expectation that President Biden would appoint him. Of course, this would also mean that Obama would have to step down as CEO of GM and Chrysler, as well as the majority shareholder in our biggest banks. And he couldn't give primetime press conferences every couple weeks either. That is a lot to ask.


Judging by Identity [Peter Kirsanow]

During the presidential campaign, there was considerable commentary about the prospect of a President Obama ushering in a post-racial era in America. The candidate himself fueled the commentary, frequently making sounds about the advent of a society that transcends race.The nomination of Judge Sotomayor demonstrates that identity politics not only remains alive and well, but may be accompanied by an unabashedly racialist interpretive doctrine. If there remains a sentient being in the White House press corps, he should ask Mr. Gibbs how a post-racial president could nominate to the Supreme Court a judge who said the following:
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.

So, inherent physiological differences may make a difference in one’s judging. Combined with Sotomayor’s vote in Ricci v. DeStefano, the statement suggests a judge quite comfortable with racial, ethnic, and gender preferences. In the Obama era, identity politics hasn’t gone away; it’s been joined by identity judging.


Judging by Identity II [Peter Kirsanow]

When George W. Bush nominated John Roberts and Samuel Alito to the Supreme Court, the members of the Senate Judiciary Committee spent considerable time analyzing the nominees’ respective interpretive doctrines. The Committee will do the same with Sotomayor.Obviously, the best evidence for a nominee’s judicial approach comes from the opinions the judge has authored. Further guidance can be gleaned from the nominee’s articles and speeches. In this regard, Sotomayor’s Berkeley lecture merits scrutiny because it describes the nominee’s view of the decisionmaking process.Senators should ask Sotomayor to expand upon her statement that “whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.”Does Sotomayor contend that a judge’s interpretive approach is hard-wired to her gender and ethnicity? Does that mean that litigants should necessarily expect different decisions from a Justice Roberts than a Justice Sotomayor?What would Sotomayor think if John Roberts had made the identical statement? Is there any doubt that several members of the Judiciary Committee would’ve declared the statement sexist and racist?Does the Constitution have different meanings depending on one’s gender and ethnicity?


Sotomayor's Credentials [Ramesh Ponnuru]

Earlier today I described Sotomayor as Obama's Harriet Miers without explaining myself. What I'm suggesting is that both nominees were picked because they were women, because they were members of politically valued groups (evangelicals in Miers's case, Hispanics in Sotomayor's), and because they were considered politically reliable by the people who picked them. Neither was picked based on her impressive legal mind, although the pickers in each case doubtless believed that the nominee exceeded some threshold level of competence. These parallels seem like more than enough to justify the title of a Corner post.

But as the various outraged lefties who have commented on it correctly note, the analogy isn't perfect. For example, Sotomayor is likely to get confirmed. There's a big difference! It's also true, as Sotomayor's defenders keep saying, that Miers never served on the bench and didn't go to Ivy League schools. I am, incidentally, enjoying the spectacle of leftists who spent years saying President Bush was a moron carry on about how insane and probably racist it is for anyone to doubt the intellect of someone who went to those schools. The people who brought up this issue were Jeffrey Rosen's Democratic sources; save the racism charges for them.

For whatever it's worth, I am perfectly willing to assume that Sotomayor's IQ is north of 100. I also don't think that the issue ought to be decisive. A nominee who had a modest conception of the judicial role, constrained most importantly by the public's understanding of the meaning of the constitutional provisions to which it consented, would have my support even if he were less intelligent than the other justices; a genius nominee who held a more plastic conception of the law wouldn't. And I think that Senate Republicans would be well advised to look at the job qualifications the same way.


The Latina Lecture [Rich Lowry]

It's pretty amazing. Have we ever had a Supreme Court justice before who stated quite frankly that he or she is incapable of being objective?

Sonia Sotomayor for SCOTUS ?

Score one for liberal identity politics.

Here are a few links:

http://foxforum.blogs.foxnews.com/2009/05/26/cupp_sotomayor_obama/
http://volokh.com/posts/1242229209.shtml

http://www.tnr.com/politics/story.html?id=45d56e6f-f497-4b19-9c63-04e10199a085

http://www.nytimes.com/2009/05/27/us/politics/27websotomayor.html?_r=1&ref=global-home