Legal News Updates

Posted at 6:03pm on Apr. 25, 2007 Perhaps Geoffrey Stone Isn’t a Complete Idiot and a Disgrace to the University of Chicago

By AndrewHyman

In case you missed it, University of Chicago Law School Professor Geoffrey Stone has been urging people to consider the possibility that the five justices in the recent Gonzales v. Carhart majority may have been imposing their Catholic religion on the nation. Today, Stone elaborates:

These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions.

This guy needs to issue an apology before he goes the way of Don Imus. There is no basis for casting such bigoted aspersions on these five justices. For once in my life, I actually respect something that Ralph Neas said this week: “My problem with the right-wing block on the court is their view of the Constitution, not their religion.” But perhaps Neas is part of the vast Catholic conspiracy too, right Professor Stone?

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Posted at 5:52pm on Apr. 25, 2007 Fourth Circuit nomination is on the way

By Alexham

So saith William Watkins.

I am working on confirming the identities of the final two candidates, and will update y’all as soon as I know more.

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Posted at 12:13am on Apr. 25, 2007 Pat Leahy, M.D.

By Curt Levey

If you’re suffering from an autoimmune disease, today’s Judiciary Committee meeting is good news. If you’re an appeals court nominee awaiting a committee vote, not so much. While Sen. Leahy’s committee will have time today to take up the designation of May 2007 as “National Autoimmune Disease Awareness Month,” it will have no time to vote on DC Circuit nominee Peter Keisler or 2nd Circuit nominee Debra Livingston, both of whom have already had hearings. That virtually ensures that there will be no appeals court confirmations this month, signaling that Senate Democrats are not serious about maintaining the one-a-month pace necessary to fulfill their agreement to confirm 17 circuit judges during the 110th Congress.

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Posted at 4:40pm on Apr. 23, 2007 A Fund of Information

By Quin

(Cross posted from The American Spectator) For those who still hope that President Bush will get one more crack at appointing a Supreme Court justice, John Fund’s column in Saturday’s Wall Street Journal is a must read, for two reasons. First, it shows just how important judges are at all levels of government. In this case, Fund concentrates on the Wisconsin Supreme Court, in a highly interesting analysis. The second reason is that a central character of Fund’s piece is federal Court of Appeals Judge Diane Sykes, formerly of the Wisconsin Supreme Court. Sykes figures prominently on the short list of those whom Bush might appoint if given the chance. She would be an excellent choice.

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Posted at 11:08am on Apr. 23, 2007 The Enduring Judiciary

By AndrewHyman

Congressman Chip Pickering has an April 20 piece titled “McCain and the Enduring Judiciary” in which he endorses John McCain’s ability to put good judges on the bench. And, speaking of the enduring judiciary, we all share these sentiments about Justice Stevens. 🙂

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Posted at 12:45am on Apr. 21, 2007 Justice Ginsburg Agrees with Herself

By Curt Levey

It should surprise no one that, in Justice Ginsburg’s Carhart dissent, she chooses the Court’s VMI (U.S. v. Virginia) and Social Security (Califano v. Goldfarb) decisions as the best examples of proper “notions about women’s place in the family and under the Constitution.” That’s because she wrote the former and argued the latter.

Nor should anyone be surprised that, according to Ginsburg’s dissent, “legal challenges to undue restrictions on abortion procedures [are not about] some generalized notion of privacy” after all. Instead, they’re about “a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Once again, Justice Ginsburg agrees with herself:

I’ve always said . . . that the equal protection strand should join together with the autonomy of decision-making strand so that it wasn’t a question of equal protection or personal autonomy; it was a question of both. — Justice Ginsburg, Supreme Court confirmation hearing, July 1993 (explaining the grounds on which a constitutional right to abortion rests)

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Posted at 11:18pm on Apr. 20, 2007 Let’s Hear it For Miss America 1944!

By AndrewHyman

Click on image of Venus Ramey for details. More here.

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Posted at 10:04pm on Apr. 20, 2007 Gonzales Testimony through a Different Prism

By Marshall Manson

During the summer of 2005, I had the honor of being a Capitol Hill hanger-on during now-Chief Justice John Roberts’ Senate confirmation hearings.

With a group of experience communications professionals, I watched in amazement as Roberts gave his opening statement and then answered hours of questions without a single note or, indeed, piece of paper on the table before him. His testimony instantly became a legendary example of intellectual and rhetorical brilliance, and his confirmation swiftly became a foregone conclusion.

A few months later, I watched from a greater distance but with similar interest as now-Justice Alito managed nearly to match Roberts’ brilliance in both style and substance.

But in between, those of us who followed the judicial confirmation battles closely knew that there was a very real possibility that President Bush would nominate his Attorney General and long-time friend, Alberto Gonzales, to the Supreme Court seat that Alito eventually filled.

Both the Roberts and Alito hearings took place in the same large hearing room in the Dirksen Senate Office Building – the same room, in fact where Attorney General Gonzales appeared yesterday to testify about his “decision” to dismiss eight United States Attorneys from various corners of the country.

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Posted at 4:34pm on Apr. 20, 2007 Alabama SG (and future SCOTUS justice) Kevin Newsom to reenter private practice

By Alexham

My guess is that Mr. Newsom will not be in private practice for long though. He has been mentioned here (and elsewhere) as a rising star among judicial conservatives, and many suspect (including yours truly) that he will be appointed to the Eleventh Circuit when the next vacancy opens up (assuming, of course, that the GOP retains the White House in 2008).

In any event, kudos to Mr. Newsom for all of his excellent work as Alabama’s SG, and best of luck to him in all of his future endeavors.

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Posted at 1:57pm on Apr. 20, 2007 Back to Race in Schools

By Quin

Even after the Supreme Court rules on the Seattle and Kentucky cases about race-based school assignments/admissions, the cases are likely to keep on coming. Here’s my latest on a case now percolating in California:…

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Posted at 2:35am on Apr. 19, 2007 Ginsburg Says It’s Not About Privacy….It’s About Stature

By AndrewHyman

Wading through the dissent today in Gonzales v. Carhart, it seems that the liberal justices are shifting ground yet again. The Court’s implausible penumbras and emanations were abandoned a long time ago, and now it seems that the general right to privacy is going out the window too. About time, because such an unbounded and amorphous right has no basis in the Constitution. So, the dissenters now say it’s all about “stature”:

[L]egal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.

If the SCOTUS minority had true and substantial respect for the stature of women, they would stop the unconstitutional disenfranchisement of women on this issue. 72% of women believe that all methods of second trimester abortion should generally be illegal. Too bad they lost the right to vote on it.

Justice Ginsburg ought to acknowledge a very simple reality: men can avoid decades of child support obligations by controlling their sexual urges, and so can women. Even if Justice Ginsburg believes that aborting a human fetus is not an extremely harmful act, surely she can acknowledge a small possibility that her view might be wrong, and acknowledge that even such a small possibility may be enough to justify fetal protection.

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Posted at 8:01pm on Apr. 18, 2007 Reid has some splaining to do

By Curt Levey

“A lot of us wish that Alito weren’t there and O’Connor were there.”

That’s Senate Majority Leader Harry Reid’s puzzling reaction—at a press conference—to today’s Supreme Court decision upholding the federal partial-birth abortion ban. This remark from a man who voted for the partial-birth abortion ban found constitutional today and against an amendment to the bill declaring that “Roe v. Wade was appropriate and . . . should not be overturned.”

Is Sen. Reid saying that he voted for the federal ban hoping it would be overturned by the Supreme Court? Is he saying that he voted for what he believes to be an unconstitutional law? Or was he just hoping that he could score points with the Left by bashing President Bush’s Supreme Court picks, without pro-life voters in his home state of Nevada noticing the contradiction??

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Posted at 7:26pm on Apr. 18, 2007 Only a partial victory

By Quin

Yes, I’m glad the partial-birth ban was upheld. But closer analysis makes clear this isn’t all good. Here’s my take on it, for the (London) Guardian’s Comment is Free website:…

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Posted at 6:02pm on Apr. 18, 2007 The Rogue Court Gets One Right

By AndrewHyman

As far as I can tell, the Supreme Court today upheld a statute as constitutional, without a single one of the nine justices even mentioning the constitutional provision at issue. Amidst 22,490 words you will not find the words “due process.” What this signifies, I do not know.

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Posted at 12:32pm on Apr. 18, 2007 Jurisprudence of Doubt

By aurel

Justice Thomas added a concurrence to the PBA-cases decided today, in which he states, simply, that he writes “separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution.” This is a customary statement by now, and of course Justice Scalia joined it.

Some judicial conservatives may worry that, although the Chief Justice and Justice Alito joined in the majority, they declined to join the concurrence.

They have therefore refused to sign up to the simple statement that the Roe-Case-line of jurisprudence “has no basis in the Constitution.”

Maybe Roberts and Alito chose not to join because they don’t want to tip their hand.

This will raise the fear with some that the new conservative justices belong to the “Rudy Giuliani School of Strict Constructionists”, those “judicial conservatives” who will not strike down Roe and Casey because those cases, although originally wrongly decided, have somehow become right because of the power of precedent?

More below the fold.

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Posted at 11:52am on Apr. 18, 2007 The PBA Opinion

By Alexham

You can read it here.

I will highlight key excerpts from the majority opinion and Justice Thomas’s concurrence below the fold.

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Posted at 11:18am on Apr. 18, 2007 Federal PBA ban upheld by the Supremes

By Alexham

Details to follow.

Update: SCOTUS Blog is on the case.

From the AP (quoting the opinion, which has yet to be published online):

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion.

And this from Justice Ginsburg:

“Today’s decision is alarming,” Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling “refuses to take … seriously” previous Supreme Court decisions on abortion.

(More below)

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Posted at 10:12am on Apr. 18, 2007 Candor from the legal left

By Alexham

Courtesy of Professor Kim Roosevelt:

“In a sense, yes . . . Of course in academia you’re much more engaged in a disinterested search for truth, and I like that.” But Roosevelt doesn’t think academia is entirely disinterested. “You don’t necessarily have a client, but maybe you have your particular political beliefs that are driving you to try to reach a certain conclusion. I try very hard to justify Roe v. Wade. Very difficult to do. But I wouldn’t be trying so hard if I weren’t ideologically pro-choice. It’s still difficult to try and be completely objective.”

(h/t Stuart Buck)

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Posted at 3:53pm on Apr. 17, 2007 Whither Alito

By Quin

I find the third case discussed here(…)to be rather disturbing. I have not read it closely, but I have skimmed it, and on first glance it looks like Scalia, Thomas, Roberts and Souter (!) have much the better argument — and, the reason it is so disturbing, that Alito has joined with the side that just isn’t defensible from the standpoint of conservative jurisprudence. On the Scalia side are those who say that the unambiguous actual text of a statute should control its interpretation; on the other side, the side that Alito amazingly joined, are those who prefer to try to decipher legislative “intent” even if the actual text contradicts that intent.
As probably the single foremost, longest and loudest advocate of nominating Alito the the high court, I am quite concerned about this. Is there anybody out there who can offer a good, CONSERVATIVE, defense of Alito’s position, so as to reassure me? Right now I am a bit shaken.

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Posted at 1:52pm on Apr. 17, 2007 Open Thread

By AndrewHyman

Sympathies to the Blacksburg shooting victims and their families.

It appears that the gunman bought a Glock pistol even though he had been taking mind-altering drugs for depression, which seems like inadequate regulation of gun sales to me (and maybe inadequate regulation of mind-altering drugs). It also looks like the school administration went wrong by failing to tell students about the first of the two shooting sprees. Probably lots of lessons to be learned here, as more facts become available.

P.S. Eric Harris, of Columbine fame, had also been taking mind-altering drugs.

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Posted at 2:38am on Apr. 12, 2007 CCA Confirmations On Track . . . For Now

By Curt Levey

The mere fact that 2nd Circuit nominee Debra Livingston got a hearing yesterday was good news. Some people had expressed concern that Sen. Leahy would use the Judiciary Committee’s U.S. Attorney investigation as an excuse to not hold a hearing for a circuit court nominee in April. The result would almost certainly have been no circuit court confirmations in April, signaling that Senate Democrats are not serious about maintaining the one-a-month pace necessary to fulfill their agreement to confirm 17 circuit judges during the 110th Congress.

Even better news is that Sen. Schumer behaved himself—contrary to a colleague’s fears—and joined Sen. Clinton in voicing support for Livingston, a New York nominee. It thus appears likely that the agreement will stay on track, at least for now. But before you relax, consider yesterday’s report in Roll Call (subscription only) that “angry Senate Democrats are mulling [retaliation] against the Bush administration for [executive branch recess appointments] during last week’s recess, including possibly . . . blocking all future White House nominations.”

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Posted at 5:08pm on Apr. 10, 2007 “Something To Be Thankful For”

By Alexham


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Posted at 7:58pm on Apr. 9, 2007 O’Connor Complains About Court Critics; Defends Grutter v. Bollinger

By John Kalinger

Last week former Supreme Court Justice Sandra Day O’Connor gave a speech at Southern Methodist Univerity in which she claimed that the reason why people have lost faith in the courts is because of all these folks running around complaining about “activist judges.” Two days later O’Connor spoke at a symposium at Washington and Lee honoring Justice Powell where she defended her 2003 decision in Grutter v. Bollinger. Apparently, O’Connor was unaware of the irony created by the juxtaposition of these two speeches.

If O’Connor had attended the rest of symposium she would have heard other panelists discussing the work of UCLA law professor Richard Sander, who has presented some rather convincing evidence that affirmative action programs at the nation’s top law schools actually leads to fewer minorities in the legal profession. Professor Sander’s work…

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Posted at 1:07am on Apr. 7, 2007 Giuliani Should Listen to Scalia

By AndrewHyman

In South Carolina this week, Rudolph Giuliani said:

I think abortion is wrong….But ultimately, I think it is a woman’s right, a woman’s choice. And government should not interfere with it by imposing criminal penalties on people….The present state of the law on these issues is not something that I would seek to change.

No, of course not. If a woman is eight months pregnant, and she and her husband decide that they would rather spend their money on vacations to Bermuda instead of on caring for a child, then by all means they should be allowed to rip the unborn child apart limb from limb, and then go on vacation. We’re still waiting for Mr. Giuliani’s views on infanticide.

Meanwhile, speaking in Florida on Wednesday, Antonin Scalia said: “If you want to be governed by an aristocracy, there are better aristocracies than nine lawyers.” Giuliani needs to listen to Scalia. Or better yet, listen to the American people: over 70% of women in the United States believe that abortion should generally be illegal in the second trimester. Why does Giuliani want to force on women a right that most women don’t believe they should have?

Hat Tip: HJB

UPDATE: Here’s some more from National Review about Rudy’s position on this. I agree with the National Review editorial, except that they err in characterizing the position of the late President Ford. See here.

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Posted at 10:11am on Apr. 6, 2007 The Legacy of W.

By aurel

Kim Strassel reviews the legacy of President Bush where it concerns judges in the Wall Street Journal. Her conclusion: “Six years in, even the most critical conservative activists are concluding that President Bush has had an impressive judicial run. The base may be disappointed with other aspects of this president and his party, but there’s a rock-solid feeling the Texan has lived up to his campaign promises to change the judiciary with distinguished conservative jurist…[Unfortunately, a] few notable senators aside–Mitch McConnell, Jon Kyl, John Cornyn–the reality is that few Republicans have matched Mr. Bush’s passion.”

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Posted at 9:23pm on Apr. 4, 2007 Hearing Next Wednesday

By AndrewHyman

Sen. Schumer is scheduled to chair a hearing of the Judiciary Committee on 11 April. I’d guess that Second Circuit nominee Debra Livingston may appear, since the Second Circuit includes New York (look for Schumer to insist that she reveal her political views and that she opine about Supreme Court cases that other nominees have declined to opine about).

Hat Tip: Nomination Observer.

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Posted at 10:00pm on Apr. 3, 2007 Ted Kennedy Imperils Judicial Independence

By AndrewHyman

On March 29, Sen. Edward M. Kennedy (D – Mass.) gave a speech about the judicial confirmation process, and here’s a snippet:

We should require that nominees share their thinking with the Judiciary Committee and not pretend that such candor is tantamount to prejudging specific cases.

Nothing could be more harmful to judicial independence than Senator Kennedy’s suggested approach. As Washington Post editorial writer Benjamin Wittes has put it, “silence is the only honorable response to certain questions. It is quite improper for nominees to commit or appear to commit themselves on cases that could come before them….that is the price of judicial independence.” Senator Kennedy was not complaining in 1993 when Ruth Bader Ginsburg came before the Judiciary Committee and answered a question about gay rights like this: “I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.”

I agree that if the Supreme Court continues to increasingly interpret the Constitution as a blank check giving the Court unlimited power to impose policy on the American people, then it might be appropriate to consider whether SCOTUS nominees should explain their thinking in more detail. But, that fateful step should not be taken quite yet.

President Abraham Lincoln reportedly put it this way, when he nominated Salmon P. Chase as chief justice: “We cannot ask a man what he will do (on the Court), and if we should, and he should answer us, we should despise him for it. Therefore we must take a man whose opinions are known.” This has been the unwritten rule of judicial nominations and confirmations for hundreds of years. After the way Sen. Kennedy treated the Alito nomination, he cannot now credibly claim to have had a mistakenly favorable view of Alito’s judicial philosophy.

In 1967, when Thurgood Marshall’s nomination was pending in the Senate, Sen. Kennedy said: “We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters which are either before the court or very likely to appear before the court.” Justice Marshall followed Kennedy’s advice, and all nine of the present Justices agree with what Kennedy said in 1967.

Sen. Kennedy is now demanding that nominees answer questions that — until now — have not even been asked by presidents. As one president put it, “I have never given a litmus test to anyone that I have appointed to the bench.” Enough with the litmus tests please, Senator Kennedy.

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Posted at 2:17pm on Apr. 2, 2007 We need one more vote

By Alexham

In case it wasn’t already apparent, Justice Kennedy has completely gone over to the dark side, as evinced by his voting with the majority in the “global warming” case (released today).

As usual, Justice Scalia nails it in his dissent:*

The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.

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Posted at 11:05pm on Apr. 1, 2007 Couple News Items

By AndrewHyman

First, from the Grand Rapids Press in Michigan, we have an article titled “Senators and judges” urging the Senate to hurry up and confirm Sixth Circuit nominees Kethledge and Murphy, as well as much-needed District Court nominees.

Second, from the Vermont Guardian in the Green Mountain State, we have an article titled “Bush eyes Leahy for Supreme Court appointment” (please let it be an April Fools joke).

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Posted at 6:42pm on Mar. 29, 2007 Elrod Nominated for Fifth Circuit

By AndrewHyman

So says How Appealing.

There’s also some discussion of the Elrod nomination here at confirmthem, in the previous comment thread.

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