Obama’s Front Runner for SCOTUS; And Two Other Possibilities
Elections have consequences and this could get very interesting especially when you review the front runner’s qualifications or lack thereof:
The most mentioned candidate to replace David Souter is Elena Kagan, former dean of the Harvard Law School, now President Obama’s Solicitor General. Kagan’s best-known piece of legal scholarship is an article in the 2001 Harvard Law Review arguing in favor of stronger direct presidential control over administrative agencies. It makes for ominous reading at a time when Democrats hold big majorities in the elected branches of government.
Let’s put it this way: If Kagan does reach the court, liberals everywhere are going to have to eat their words about the wickedness of those conservative champions of the “unitary executive” theory: “When we said we were opposed to the unitary executive, that was because we favored a super unitary executive!”
Some extracts from Kagan’s article, 114 Harv. L. Rev. 2245:
[P]residential control of administration, in critical respects, expanded dramatically during the Clinton years, making the regulatory activity of the executive branch agencies more and more an extension of the President’s own policy and political agenda.Faced for most of his time in office with a hostile Congress but eager to show progress on domestic issues, Clinton and his White House staff turned to the bureaucracy to achieve, to the extent it could, the full panoply of his domestic policy goals. Whether the subject was health care, welfare reform, tobacco, or guns, a self-conscious and central object of the White House was to devise, direct, and/or finally announce administrative actions – regulations, guidance, enforcement strategies, and reports – to showcase and advance presidential policies.
**
Accepted constitutional doctrine holds that Congress possesses broad, although not unlimited, power to structure the relationship between the President and the administration, even to the extent of creating independent agencies, whose heads have substantial protection from presidential removal.
The conventional view further posits, although no court has ever decided the matter, that by virtue of this power, Congress can insulate discretionary decisions of even removable (that is, executive branch) officials from presidential dictation – and, indeed, that Congress has done so whenever (as is usual) it has delegated power not to the President, but to a specified agency official. Clinton’s use of what I call directive authority – his commands to executive branch officials to take specified actions within their statutorily delegated discretion – ill-comports with this view. The unitarians would defend the practice simply by insisting, against the weight of precedent, that the Constitution provides the President with plenary authority over administration, so that Congress can no more interfere with the President’s directive authority than with his removal power.
I too defend the practice, but not on this basis. I accept Congress’s broad power to insulate administrative activity from the President, but argue here that Congress has left more power in presidential hands than generally is recognized. More particularly, I argue that a statutory delegation to an executive agency official – although not to an independent agency head – usually should be read as allowing the President to assert directive authority, as Clinton did, over the exercise of the delegated discretion.
**[President] Clinton …developed a set of practices that enhanced his ability to influence or even dictate the content of administrative initiatives. He exercised this power with respect to a wide variety of agency action – rulemakings, more informal means of policymaking, and even certain enforcement activities. … In so doing, Clinton also showed that presidential supervision of administration could operate, contrary to much opinion, to trigger, not just react to, agency action and to drive this action in a regulatory, not deregulatory, direction.
**
Presidents before Reagan… usually had shunned direct [Executive] involvement in any administrative rulemaking, and even Reagan, in creating a mechanism for this involvement, had disclaimed any authority ultimately to displace the judgment of agency officials. The Clinton order, by contrast, implied precisely this power – presidential directive authority over discretionary decisions assigned by Congress to specified executive branch officials (other than the President). Under this view, the President would not need to resort to his power of removal over executive branch heads to ensure a certain rulemaking result: that result would – or at least should – follow by virtue of a presidential (displacing a secretarial) order.
That was merely an excerpt of her opinion paper on the don’t ask don’t tell policies of the Clinton administration, which she agrees with. It gives the executive branch way more control than one ought to have.
But here is some additional information on Ms. Kagan:
“Dean Kagan’s nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation’s high court.
-Dean Kagan has taken positions that are disturbingly out of the mainstream. For example, driven by her view that the “don’t ask; don’t tell” policy adopted by a Democrat Congress and President Clinton is “a profound wrong–a moral injustice of the first order,” she argued that it violates the First Amendment for the United States to withhold funds from colleges that ban the military from recruiting on campus. The Supreme Court unanimously rejected this view.
-It is also unclear that a Justice Kagan would be an adequately independent check on executive excesses. She has argued in favor of greatly enhanced presidential control over the bureaucracy, which is concerning in light of President Obama’s unprecedented centralization of power in the White House.
-Dean Kagan has argued that nominees to the Supreme Court should undergo a searching inquiry into the nominee’s substantive views of the law, and should comment particular issues. If nominated, it will be interesting to see whether Dean Kagan remains faithful to this prescription in answering the Committee’s questions.”
So, we could possibly see a Supreme Court justice who has no real litigation or judicial experience? This seems similar to the reasoning behind the liberal argument that Obama was qualified just because of the schools he went to… I call Shenanigans!
And what about two other female candidates? Here are their bios:
Sonia Sotomayor
“Judge Sotomayor’s nomination to the Supreme Court would be very concerning given her hard-left record on the Court of Appeals, where she is recognized by practitioners as one of the more liberal judges.
-Judge Sotomayor’s personal views may cloud her jurisprudence. As Judge Sotomayor explained in a 2002 speech at Berkeley, she believes it is appropriate for a judge to consider their “experiences as women and people of color” in their decisionmaking, which she believes should “affect our decisions.”
-Only just recently, in Ricci v. DeStefano, Judge Sotomayor was chastised by fellow Clinton-appointee Jose Cabranes for going to extraordinary lengths to dispense with claims of unfair treatment raised by firefighters. Judge Sotomayor’s panel heard a case raising important questions under Title VII and equal protection law, but attempted to dispose of the firefighter’s arguments in a summary order, until called out by Judge Cabranes. The Supreme Court has agreed to review the case.
-Substantial questions also persist regarding Judge Sotomayor’s temperament and disposition to be a Supreme Court justice. Lawyers who have appeared before her have described her as a “bully” who “does not have a very good temperament,” and who “abuses lawyers” with “inappropriate outbursts.”
Diane Wood
-If nominated to the Supreme Court, Judge Wood will have some substantial questions to answer regarding her judicial philosophy based on her work as a circuit court judge.
Judge Wood’s judicial views have on occasion been far outside mainstream legal thought and appear driven by her personal policy views. In NOW v. Scheidler, she wrote an opinion applying RICO – a statute designed for mob prosecutions – to prevent pro-life activists from engaging in protests. The Supreme Court reversed with Justices Ginsburg’s and Breyer’s concurrence. NOW v. Scheidler, 537 U.S. 393, 402 (2003).
-Judge Wood has betrayed a consistent hostility to religious litigants and religious interests. For example, Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006), she would have voted to allow a public university to revoke the student organization charter of the Christian Legal Society because it declined to extend membership to homosexuals.
She also authored an opinion refusing to allow prisons to require inmate participation in drug rehabilitation programs that used “explicit religious content,” even where such programs were the only ones available, effectively allowing inmates to refuse treatment entirely. Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996).”
You can not tell me that these three choices wouldn’t legislate from the bench and aren’t judicial activists.
BTW what was it that Obama said about appointing judges to the Supreme Court and litmus tests? Listen to McCain and Obama’s record…
Supreme Court Justice Souter to Retire
Not devastating news, but news none the less.
NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the current court term.
The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.
At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court’s age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire. Now, according to reliable sources, he has decided to take the plunge and has informed the White House of his decision.
Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.
Various observers and supporters feel that Obama will nominate another woman to the high court, which has only seated one female since Sandra Day O’Connor retired.
Possible nominees who have been mentioned as being on a theoretical short list include Elena Kagan, the current solicitor general who represents the government before the Supreme Court; Sonia Sotomayor, a Hispanic judge on the U.S. Court of Appeals for the Second Circuit; and Diane Wood, a federal judge in Chicago who taught at the University of Chicago at the same time future President Barack Obama was teaching constitutional law there.
President Obama’s choice has an excellent chance of being confirmed by the U.S. Senate, where Democrats now have an advantage of 59 seats to the Republicans’ 40.
By the time a vote on a successor is taken, the Senate is anticipated to have a 60th Democrat, as the Minnesota Supreme Court is expected to approve the recount that elected Democrat Al Franken over incumbent Republican Norm Coleman in that state.
It probably would not matter if Republicans disapproved of Obama’s pick for the Supreme Court since the possibility of 60 Dem. votes not including the RINOs would trump any type of real filibuster. For all we know he could appoint Koh to the Supreme Court – wouldn’t that be lovely?
A little Sharia Law never hurt anybody…j/k!
Supreme Court Skeptical of Preserving Voting Rights Act
I better get all my posts in quick – since the bandwidth on the Internet is running out!
So with that – there is some hope on the horizon and some sanity that may kick in regarding the Voting Rights Act:
The fate of a key provision of the Voting Rights Act looked to be in doubt Wednesday as Supreme Court justices questioned whether the Southern states still need special supervision to prevent them from discriminating against black voters.
“Are Southerners more likely to discriminate than Northerners?” asked a skeptical Chief Justice John G. Roberts Jr.
Is the “sovereignty of Georgia” entitled to less respect than “the sovereign dignity of Ohio? . . . Does the United States take that position today?” asked Justice Anthony M. Kennedy, pressing a lawyer for the Justice Department who was defending the Voting Rights Act.
The Voting Rights Act is a form of discrimination based upon regionalism at this point. It makes Southern states feel as though they are children who need to be supervised and are not as decent and dignified as Northern states. The South continues to retain the label of racist, years after Jim Crow laws were abolished, African-Americans received the right to vote and could physically vote, and schools are all integrated. I don’t know about you, but I haven’t heard of any lynchings, assaults or cross burnings that were incited by racism since I was born (80′s). Times have changed and this is an incessant grudge and resentment held by a specific ideological party, further repressing their own constituents by playing into this propaganda. The liberals only want this type of legislation because it helps them get votes.
The comments and questions during an hourlong argument suggested that a majority of the justices were prepared to strike down Section 5 of the Voting Rights Act. This provision requires many Southern states, counties and school districts to get approval from the Justice Department before making changes in their election rules. These rules range from the location of polling places to the makeup of districts in state legislatures.
The provision also applies to a few counties in Northern California, New York and elsewhere that have a high percentage of residents who do not speak English.
The question before the Supreme Court was whether this special Southern-only “pre-clearance” provision was still needed. “Why didn’t [Congress] extend Section 5 to the entire country?” asked Justice Samuel A. Alito Jr.
Exactly Justice Alito! This is reminiscent of the hate speech and hate crime legislation where only specific groups are protected and I guess “the south” would not be considered a group discriminated against. It would only seem fair that all states or none would have to comply with this Section 5 stipulation. It’s incredibly discriminatory to segregate one specific group.
Like Roberts and Kennedy, he voiced doubt about whether Congress had sufficient reason in 2006 for singling out the South for special supervision for another 25 years. In the past, Justices Antonin Scalia and Clarence Thomas also have voiced skepticism about the reach of this provision.
Another 25 years? The South isn’t the Jim Crow South anymore, nor are we living in the 1950′s/60′s!
Neal Katyal, the Obama administration’s deputy solicitor general, called the law and Section 5 “a landmark achievement” that deters schemes to violate the rights of minorities.
At this point there is so much legislation to help minorities that other groups are overlooked. And what has any of this legislation actually done over the last 45 years? If anything, inner cities and liberal bastions have gotten worse. Minorities are helped by welfare, by affirmative action (which by itself is racist legislation – ask Ward Connerly), and there are specific crimes that exist that an African-American cannot be prosecuted for based on race. The more we pay attention to race the more racism exists – plain and simple. I’m getting so sick and tired of all this race baiting and all of this group segregation, all in the name of political expediency, to win votes and keep others oppressed, who don’t know any better.
Debo Adegbile, a lawyer for the National Assn. for the Advancement of Colored People’s Legal Defense Fund, agreed. He said Congress and the court should “stay the course” and continue the effort to root out subtle discrimination that disadvantages minorities. If Section 5 were struck down, “the discrimination will return,” he predicted.
Subtle discrimination? What is subtle discrimination? You can misconstrue a look or a smirk or anything as subtle discrimination if you want by playing the race card. You can spin anything you want in order to accuse another of racism. How about we mention the percentage of blacks who voted for Obama? Was that not racist? 96% of the entire black community voted for Obama. Howard Stern asked black men and women from Harlem who they were voting for and in so doing he switched John McCain’s platforms and even the VP candidate of Sarah Palin and paired it with Obama. They didn’t know the difference… that should tell you something. What about those of us who have lived in inner cities as a Caucasian? Have we not experienced subtle discrimination or racism? As a white female I don’t have any rights when it comes to that… I don’t think getting called a “white cracker b*tch” is PC.
But both advocates were met with steadily skeptical questions from the court’s conservatives.
Roberts noted that Massachusetts had a lower rate of registering Latino voters than Texas. “Why didn’t Congress extend the act to Massachusetts?” he asked.
Great point Roberts!
The Voting Rights Act of 1965, which prohibited any voting discrimination based on race, is often cited as one of most effective and far-reaching laws of the 20th century. Until then, most blacks in the South could not vote — not because of laws against voting — but because voting rolls were controlled by county registrars. And they used many schemes to prevent blacks from registering and casting ballots.
Yes, this happened but that was nearly 45 years ago – much has changed and this doesn’t exist any longer.
If the Supreme Court were to strike down Section 5, the decision would not necessarily affect the remainder of the Voting Rights Act. Discrimination against minority voters would still be illegal, but the onus would be on the Justice Department and private lawyers to bring suits to challenge discriminatory practices.
In Alabama’s Dallas County, where Selma is the county seat, only 156 blacks among 15,000 black adults were registered to vote in the early 1960s .
This figure was cited in a brief to the court by Alabama’s Republican Gov. Bob Riley to show how things have changed. Now, about 73% of blacks and whites are registered to vote in Alabama, he said, and blacks make up one-fourth of the Legislature, matching the percentage of the black population.
Yes, and please look at the number of House representatives from the South that are represented by minorities and most specifically black men and women.
He and other Southern officials said the schemes to prevent blacks from voting have been abolished, and therefore the “pre-clearance” section is outdated.
The challenge to the law arose from an unlikely locale. The Northwest Austin Municipal Utility District in Texas does not register voters, nor has it been accused of discrimination. It is a suburban community that elects members to a water board. But because of Section 5, it had to ask the Justice Department for its approval before it moved the voting location from a private home to a public school.
Gregory Coleman, a former Texas solicitor general, filed a suit on behalf of the district challenging the law as unconstitutional. He argued that the provision of the Voting Rights Act was entirely justified in 1965 but not so today. “Times have changed,” he said, but the Southern states still wear a “badge” accusing them of racism.
In his brief to the court, he cited the historic election of President Obama as evidence that the nation has come a long way since 1965, but he did not repeat that argument Wednesday.
One would think that after the election of Obama that race relations would have been resolved, but instead they get much worse – oh the irony.
New Tax on Internet Shopping
After many years of online shopping, we have come to enjoy the perks of free shipping (in many cases) and no sales tax (in most instances). However this may be coming to an end as Congress and States look for money. NY State is going to lead a charge to Congress, that Internet sales can and should be taxed at the rate the state charges where the recipient lives.
What effect will this have on the 103 plus billion dollar Internet sales? That has yet to be seen, but it will probably cool off the growing industry. If Congress, in its quest to raise money, adds a tax to internet sales,the savings and convenience enjoyed by online shoppers may diminish significantly.
But is this move legal? Constitutionally, the movement of goods or services between two or more states is interstate commerce and is subject to Congressional controls and regulations. However, the tax of those goods and services is something that would be challenged by the Supreme Court. They tax fuel, alcohol, tobacco, phone bills, and a couple of other things. So why not Internet sales?
So once again, the little man, who fuels this economy, will get stuck paying the bills.
