Can You Guess Why Elena Kagan Has Never Been a Judge?

A major talking point in the Republican resistance to President Obama's nomination of Elena Kagan to the Supreme Court will be her "lack of judicial experience." It is true that although there is a long history of Justices without prior experience on the bench, Kagan will be the first one in 40 years. But it's worth noting exactly why it is that Kagan never served on the bench: she was caught up in the Republicans' institutional sabotage of President Bill Clinton's judicial nominees.

In June of 1999 Bill Clinton nominated Kagan to be a federal appeals court judge. Orrin Hatch, Republican chairman of the Senate Judiciary Committee, simply refused to schedule a hearing. This was one of many tactics used to block dozens of Clinton appointees, leaving many important judicial offices empty for months and even years. The cost to the nation was not important to political-gaming Republicans.

Nor is this history one of both sides using the same tactics. Republicans have pioneered the use of the filibuster and other tactics to block nominees, and succeeded in thwarting Clinton nominations at a rate far higher than Reagan or either Bush experienced. And, as usual, the hypocrisy is as high as the elephant's eye.

Like the nomination of Sonia Sotomayor, the Kagan nomination can reasonably expected to be successfully confirmed by the current Senate, with its 59 Democrats. But judicial nominations are one of the key battlegrounds in the dangerous evolution of the use of parliamentary maneuvers to stymie the functioning of the government. Like economic and foreign policy, judicial policy requires that the citizens do some homework.

Put Bill Clinton on the Supreme Court

In the discussion about who President Obama will nominate to fill the Supreme Court vacancy with the retirement of Justice John Paul Stevens, we've been hearing the idea floated that someone with political experience would be healthy for the Court. I'm more inclined to favor a distinguished jurist myself, but I do have a modest proposal if we're going to go with a politician: put Bill Clinton on the Court!

This idea gets more fun the longer one thinks about it. He is, after all, generally recognized as the master politician of his age, whatever else one might think of him. He's not the kind of guy you want wandering around at loose ends, either: the Court is the only box big enough to hold him, and it'd get him out of Barack and Hillary's hair. Idle hands do the devil's work! And he is a former constitutional law professor, after all. And empathy up the wazoo! (At times quite literally, one gathers.) Personal experience with the law, even. And one relishes the thought of the up-the-wall-driving potential the appointment would have for our dear conservative friends. I for one am constantly thinking of new ways to express my feelings for them these days.

True, the confirmation process might be a tad bumpy. But doesn't anybody else miss the gaudy entertainment provided by the Clarence Thomas hearings? (Don't answer that.) I think that the next time Barack, Michelle, Hillary and Bill are all dining together (have they ever dined together as a foursome? Interesting question), Barack should wait until all three are in mid-sip and just put it out there. Fun times! And the most spit-take-worthy thing of all? In all sincerity, I wouldn't mind seeing Bill on the Court one bit!

(Addendum: Although I wrote this post in a jocular spirit, it's turning out to get a lot of attention. A testimonial to BC's enduring charisma, I'd say. One point of information: It doesn't matter (technically speaking) that Clinton lost his law license. A Supreme Court Justice needn't be a lawyer at all, barred, disbarred or otherwise. In fact, the only constitutional requirement for a seat on the High Court is that one be nominated by the President and confirmed by the Senate. That's it. President Obama could put Jerry Springer on the Court if he could get him confirmed. Although, as I stated in the first paragraph, I myself would be more inclined to go with Judge Judy.)

Republican Misrepresentation of Sotomayor's Role in "Ricci vs. DeStefano"

There isn't much chance that Judge Sonia Sotomayor will not be confirmed later this month as the next Supreme Court Justice, the first latino/a (and a Puerto Rican from the Bronx no less) to go on the Court. So I'm just going to focus here on something that is very important about what we're watching this week whether she is confirmed or not, and that is the way the right wing (and to that extent the media) are misrepresenting the actual facts about Judge Sotomayor's ruling on Ricci vs. DeStefano. There has been some reporting that this issue will be the focus of Republican criticism.

Remember as we review the facts of Judge Sotomayor's participation in that case that most Senate Republicans understand that the perception that Republicans are attacking Sotomayor because she is a latina is political poison for the Party. The only big electoral state the Republicans carried in 2008 was Texas: everyone can do the math.

Listen to the Republicans this week. They will be implying (sometimes baldly stating) that Judge Sotomayor endorsed reverse discrimination in the Ricci case. The Ricci case, they will loudly state, is the proof that Judge Sotomayor is a reactionary affirmative action reverse racist. Here are the facts:

1) Both sides in the original situation appealed to the same legislation, Title VII of the Civil Rights Act. The Civil Service Board of the City of New Haven invalidated the results of the firefighter's promotion exam because the Board was worried that they might be sued under Title VII. Ironically, the firefighters who had passed the exam (17 whites and 1 latino) then sued the City under that very law, Title VII. Two things to notice: a) Both sides appealed to the same law. This was not a dispute about the constitutionality of the law. b) The Civil Rights Act is legislation that was passed by Congress. Any judicial proceeding affirming the right of the City to act under its interpretation of the Act is affirming the constitutionality of a law passed by the legislative branch. Nothing more, nothing less.

2) The 18 firefighters' case was heard in Federal District Court by Judge Janet Bond Arterton, a Clinton appointee. She ruled against the firefighters in a "summary judgement." That is, she ruled that there was not sufficient reason for the Courts to overturn a decision of the City. Again, this is basic everyday "constructionist" jurisprudence, of the kind conservatives support. No policy-making, and upholding the authority of the elected lawmakers.

3) This is the most important detail, I think: the case next went to the Second Circuit Court of Appeals. There is was heard by a three-judge panel. The presiding judge, that is the judge that wrote the opinion, was Judge Rosemary Pooler. The third judge was Robert David Sack. Pooler wrote what is called a per curiam decision all of eight sentences long. Such decisions are anonymous and unanimous, and are used by courts where there may be disagreement among the judges but a collective view that it is not worth fighting it out. So Sotomayor played, relatively speaking, a very small role in this case. The Second Circuit simply upheld Judge Arterton's ruling, which simply stated that the City's Board had been acting properly within its understanding of the law. Sotomayor did not write this ruling, and it is an anonymous and unanimous ruling. She sat on a three-judge panel that was presided over by someone else. That's it.

4) The Supreme Court ordered a review of this case certiorari, meaning it exercised its authority to instruct the Circuit Court to send the case up for review. That is, the Supreme Court intervened in the process to cause a case to go up to the Court that otherwise would have come to an end. The Court ruled in favor of the firefighters on June 29th, along the expected 5-4 ideological lines.

Remember the gist of these facts as you listen to the Republicans all week telling us that Ricci vs. DeStefano is proof that Sotomayor is biased and an activist. It is sheer distortion. Get a better sense of Sotomayor here, for example, or here.

(Here and here are two earlier posts tagged Sotomayor.)

Talking Points For Defending Sotomayor

When despairing of the inane political football games that Supreme Court nominations too often become, we might take some consolation (cold comfort, I admit) in the fact that it has always been so, and in fact if anything 19th Century Court politics were even rougher than they are today. It's also likely that Sonia Sotomayor's nomination will go through; it's hard to see how the Republicans could stop it. Still, we will now have an interlude of fussing and fighting and it's useful to try to pull out the most salient talking points.

Those points are not, I don't think, the most obvious ones. The obvious points are as follows:

1) Obama continues to follow a recent trend started by Clinton and, after initially stumbling with his arrogant attempt to appoint an old crony, Harriet Miers, hewn to by Bush in his appointments of Roberts and Alito: appoint extremely accomplished jurors. This is definitely a good idea as the corpus of law only grows more complex and simply larger with each passing year. In the case of Sotomayor, we have a jurist who graduated summa cum laude from Princeton, was an editor of the Yale Law Review, worked for the legendary Manhattan District Attorney Robert Morgenthau, and has now served eleven years as a judge on the U.S. Court of Appeals for the Second Circuit in New York City.

2) Democrats and liberals like myself also have nothing to complain about: we have the first Latino/a nominee in the history of the Supreme Court - and a Puerto Rican from the Bronx, no less! That's maybe the best part. A woman diagnosed with diabetes at a young age, raised by a single mother. Not only that, but she is most famous (until now) for ending the baseball strike in 1995 coming down on the side of the players, thus avoiding what would have been the first cancellation of the World Series in 90 years. Her overall record is liberal but hardly "activist" (as her attackers will begin shouting on cable today), with plenty of examples of ruling against liberal outcomes on the basis of constitutional law.

But here are three points to keep especially "on-message" as the right wing tries to tar Judge Sotomayor: a) She was a prosecutor in Manhattan for six years. b) She was recommended by Daniel Patrick Moynihan, but the President who actually appointed her was George H. W. Bush, and most importantly c) as a Judge on the Couirt of Appeals in New York City, most of her rulings have not concerned "social" issues. She has been working most of this time on complex cases involving the financial and banking industries as well as communications technology, just the kinds of cases that are likely to come before the Court in the next few years. These are the things one might want to mention in public debate with the dittohead troglodytes.

Empathy on the Supreme Court

Why not put Bill Clinton on the Supreme Court? Obama and Hillary need to keep him busy, and it's the only box big enough to hold him. Plus he's a notorious empathizer.

Speaking of that, I'm marveling at this week's conservative attack on President Obama, who made the outrageous assertion that he wanted to appoint someone to the Court who might have empathy for ordinary people. Horrors! This is more of the Keystone Kops routine we're seeing from a right wing that is now led by Rush Limbaugh. How great is it to have political opponents who are spending the week declaring themselves to be against empathy? Rhetorical geniuses they are not.

Meanwhile, I'd love to have an interview with Justice Clarence Thomas about all this. He wasn't quite four-square against empathy in his dissent to Virginia vs. Black in 2004, when the court upheld a right to cross-burning under the 1st Amendment. "Those who hate cannot terrorize or intimidate to make their point," he wrote, adding the interesting metaphysical observation that burning a cross was more like burning a house than it was like making a statement; one could, after all, burn down a house to make a point. So how about it, Justice Thomas? For empathy, or against it?

Caroline, Be a Kennedy, Not a Bush

I always thought it was fitting that George W. Bush was appointed President by the Supreme Court in 2000. It's just so declasse to be elected by popular vote don't you know, so much germ exposure, and do you know some of those people have never even traveled abroad (er...never mind). All the good stuff - RNC chairman, CIA director, baseball commissioner - these are appointive posts.

The case of the Bushies comes to mind this week with the news that Caroline Kennedy has announced that she is actively seeking New York Governor Paterson's appointment to the Senate seat being vacated by Hillary Clinton. It's one thing to announce that one is running for election. That is the first appeal in a campaign of appeals to the voters, who are many. But to announce that one is running for appointment is not an appeal to the appointer, who is one. You appeal to one person, preferably, in person. A public announcement puts pressure on the appointer, enough so that this may have been a miscalculation. Maybe Paterson will feel obliged to decline to appoint her so as not to appear to have caved in. (And Paterson himself has not ever been elected governor: curiouser and curiouser.)

Another curious thing is the kind of boutique nature of this Senate seat since the patently carpet-bagging Hillary Clinton moved to New York to campaign for it in 2001 (granting she did an exemplary job by all reports). Caroline Kennedy is someone who, like Hillary Clinton, might easily be elected to this Senate seat by the voters of New York on the basis of associations, popularity and name-recognition. But as a potential appointee she conspicuously lacks any formal qualifications, and the governor, presumably, is supposed to appoint a professional caretaker (a politically adventitious one of course) to fill the seat until the next election. I think it would be great to have Caroline Kennedy in the Senate, but there are fundamental procedural problems here that she may not overcome.

(Three days later: sure enough, now some are in favor of Kennedy and some opposed: Cuomo had more support in a poll reported on MSNBC last night. So now Paterson will take a political hit whether he appoints her or not, through no fault of his own. If I were him I'd be mad. And I wouldn't appoint her.)

Game of Chance

The recount in the senate race in Minnesota gives me another opportunity to make a point that I thought was important during the Florida electoral debacle of 2000. In 2000 the lawyers for the two parties were quick to step in and define the process as a legal one between the parties: may the best lawyer win. In the end the Supreme Court essentially appointed Bush, acting out of a well-intentioned but misguided sense of duty to resolve the crisis. The issue here as I see it is about who the interested party is, and I would argue that that party is the electorate, not the political parties.

The fact is that in a state-wide vote involving hundreds of thousands and even millions of votes, any margin in the three digits is a statistical tie. In that circumstance there literally is no truth about who won the election. The phrase "margin of error" refers to the logical impossibility of establishing, within such a narrow margin, which candidate actually received the majority of votes. While Minnesota has a good reputation for clean and fair processes, I don't think that a recount process that ignores the problem of the margin of error is in the best interests of the voters, considered generically. The political point is that the interests of the voters considered as a group is not the same as the interests of either of the parties.

Say I voted for Franken (or Gore) and my neighbor voted for Coleman (or Bush). The outcome is a statistical tie within the margin of error. At that point my neighbor and I have an equal right to satisfaction. That is, every voter, granting that the electoral process has not determined the winner (it is a tie), deserves an equal chance of satisfaction as that of every other voter: we are not the political parties, we are sovereign individual voters. The fair thing to do is to flip a coin (or any other equivalently random process). That way my neighbor and I enjoy equal chances of satisfaction, uncorrupted by the vagaries of a highly politicized legal process. It doesn't matter what the parties want: the parties are not sovereign. The voters are sovereign, not at all the same thing. That is why a game of chance is actually the most rational way to decide an election when the vote has fallen within the margin of error.

As of this evening my guy, Al Franken, is up by about 600 votes. Doesn't matter. Flip a coin.