Ben Smith quotes an unnamed conservative lawyer who offers a simultaneously cynical and whimsical explanation of exactly why Obamacare is toast.

You have built an imaginary mansion, with thousands of rooms, on the foundation of Wickard v. Filburn — the 1942 ruling that broadened the understanding of how the Commerce Clause could be used to regulate economic activity.

We aren’t being asked to radically revise the Commerce Clause and throw out seven decades of law, and we won’t. But we know the founders never intended the Commerce Clause to allow the Federal Government to regulate everything on the planet. So we are going to accept Randy Barnett’s basically spurious exception to that basically spurious idea, and throw out the Affordable Care Act on the grounds that the Commerce Clause regulates “activity” (which we don’t really believe), but not “inactivity” (because, why not draw the line somewhere?).

This is to say: You have built a fantasy mansion on the Commerce Clause. You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called “inactivity,” lock the door, and don’t let you in.

America’s thinking class saw Barack Obama as a light shining in the wilderness.

In deep despair over the coarsening of public discourse during the Dark Ages of the Bush administration, American intellectuals saw Barack Obama as one of their own, someone who could restore their exalted social status and raise the level of deliberative democratic debate.

Obama hadn’t accomplished anything of note; he wasn’t really qualified for the presidency; but he was superbly intelligent, had presided over the Harvard Law Review, had professed Constitutional Law at the University of Chicago Law School, and had authored two brilliant books. ...

A few days ago the curtain was drawn and people could see that the Wizard of Oz was not what he claimed to be.

In an effort to get personally involved in Supreme Court deliberations over his signature piece of legislation—Obamacare—our president made it appear that he did not understand the most fundamental doctrine in American jurisprudence.

The former president of the Harvard Law Review, former professor at the University of Chicago Law review managed to mangle an explanation of “judicial review.” As every high school history student knows the doctrine was adumbrated in 1803 by Chief Justice John Jay in the case of Marbury v. Madison.

Obama asserted:

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

As everyone but Obama knows, Marbury v. Madison established the right of the Supreme Court to strike down Congressional legislation that it deemed unconstitutional.

The Court has done just that on hundreds of occasions.

Read the whole thing.

Hat tip to Karen L. Myers.

Barack Obama made history of a kind in the course of his 2010 State of the Union address, when he openly criticized the Supreme Court for deciding in Citizens United that federal restrictions on political speech by corporations and unions was unconstitutional.

President Obama’s highly partisan statements actually provoked Justice Alito to murmur “Not true.”

——————————-

In a further triumph of jurisprudential diplomacy, Barack Obama yesterday “warned” the Surpreme Court not to overturn Obamacare.

FoxNews:

President Obama, employing his strongest language to date on the Supreme Court review of the federal health care overhaul, cautioned the court Monday against overturning the law—while repeatedly saying he’s “confident” it will be upheld.

The president spoke at length about the case at a joint press conference with the leaders of Mexico and Canada. The president, adopting what he described as the language of conservatives who fret about judicial activism, questioned how an “unelected group of people” could overturn a law approved by Congress.

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

The Supreme Court’s sharp questioning of the constitutionality of Obamacare, and the obvious weakness of the Administration’s defense of that approach to health care reform, shocked and astounded liberal commentators. John Podhoretz notes that nothing came up in the Court’s questions that had not been argued previously by opponents of Obamacare, but previously the left just was not listening.

The panicked reception in the mainstream media of the three-day Supreme Court health-care marathon is a delightful reminder of the nearly impenetrable parochialism of American liberals.

They’re so convinced of their own correctness — and so determined to believe conservatives are either a) corrupt, b) stupid or c) deluded — that they find themselves repeatedly astonished to discover conservatives are in fact capable of a) advancing and defending their own powerful arguments, b) effectively countering weak liberal arguments and c) exposing the soft underbelly of liberal self-satisfaction as they do so.

That’s what happened this week. There appears to be no question in the mind of anyone who read the transcripts or listened to the oral arguments that the conservative lawyers and justices made mincemeat out of the Obama administration’s advocates and the liberal members of the court.

This came as a startling shock to the liberals who write about the court.

Read the whole thing.

When professional spinners on the left like Peter J. Boyer start explaining why the Supreme Court’s killing of Obamacare would really be a good thing for Barack Obama’s reelection chances, you can kind of tell that the realization that the Supreme Court is not likely to rule their way has pretty well sunk in.

Apart from the fact that Republicans would lose their most animating issue in the presidential race, the overturning of the health-care reform law would free Obama of the burden of having to mount a broad defense of his health-care plan as a centerpiece of his campaign. The president, who can read polls, managed to absent himself from any public observance of the reform law’s second anniversary last week. A Supreme Court invalidation of the reform law’s individual mandate, the feature that Americans find most odious (PDF) would allow Obama to embrace the issue anew, focusing on those portions of the reform (such as the provision allowing families to keep their children on their policies until they reach the age of 26) that most people actually like. Obama’s Democratic allies, meanwhile, could hammer home the importance of deciding who will be making the next appointments to the Supreme Court.

Jeffrey Toobin, a lawyer and legal analyst, who writes about legal topics for The New Yorker said the law looked to be in “trouble.” He called it a “trainwreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong,” Toobin said Tuesday on CNN. “I think this law is in grave, grave trouble.

Toobin’s observation came on the second day of oral arguments at the Supreme Court over the constitutionality of the Affordable Care Act.

Earlier that day, Supreme Court Justice Anthony Kennedy, who could be the deciding vote on whether to uphold the law, told Solicitor General Donald Verrilli that there appeared to be a “very heavy burden of justification” on aspects of the law, according to The Wall Street Journal.

Toobin described Kennedy as “enormously skeptical” during the arguments Tuesday.

It doesn’t happen very often, but once in a blue moon you actually find a liberal exhibiting intellectual honesty and standing up for real principles. George State Law Professor Eric Segall has the audacity to tell the readership of Slate that, yes, Elena Kagan really should be recusing herself from participating in the Supreme Court decision on Obamacare. And he is dead right.

Doing the right thing is easy when nothing important is at stake. Doing the right thing is much harder when there is a lot to lose. Elena Kagan is a loyal Democrat who owes her Supreme Court appointment to President Barack Obama.* She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party. Even though it would be a hard decision to make, Elena Kagan should recuse herself from hearing challenges to the act.

So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the case, while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case.

But what are the odds that she has as much integrity as he does?

One of the problems with appointing prominent members of a presidential administration to the Supreme Court is the issue that if litigation connected with a piece of legislation or executive order that official had a hand in crafting should subsequently occur, he (or she) might find it necessary to recuse himself from participation in the case.

Recusal is not an optional choice. 28 U.S.C. § 455 specifically states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. ...

Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.

Supreme Court Associate Justice Elena Kagan has denied being involved in preparations for court defense of Obamacare while she was serving as Solicitor General, and declined to recuse herself from the Supreme Court decision of April 2011 refusing to “fast-track” for review Virginia’s lawsuit challenging Obamacare.

Judicial Watch sued under the Freedom of Information Act and has obtained documents suggesting that Justice Kagan may have a serious problem here.

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG [Solicitor General’s] office was consulted?...

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.

The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.

Judicial Watch describes itself as conducting an ongoing investigation of the matter.

The documents obtained so far fail to produce absolute “smoking gun” proof that Kagan violated the law in failing to recuse herself, but all the evidence of collaboration over accounts is extremely suggestive.

Ace aptly observes:

Just a crazy question here—has anyone said “We’ve got to get our stories straight” when everyone involved was planning on telling the truth?

Are “coordinated” stories generally more credible than uncoordinated, unscripted ones? I guess the Obama White House thinks so.

“Coordination”

It’s a hip, smart way to say “lying.”

Larry Tribe was in great form in yesterday’s New York Times.

Nothing in his hands, nothing up his sleeve, now pay close attention as the law professor takes the interstate commerce clause and the American citizen sitting at home doing nothing at all and a federal mandate compelling Americans to purchase health insurance policies and magically causes the last two to fit within the former.

[P]redictions of a partisan 5-4 split rest on a misunderstanding of the court and the Constitution. The constitutionality of the health care law is not one of those novel, one-off issues, like the outcome of the 2000 presidential election, that have at times created the impression of Supreme Court justices as political actors rather than legal analysts.

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Mr. Tribe fails to consider that perhaps key New Deal era decisions, like Wickard v. Filburn, which reached beyond actual interstate activity to assert federal authority over private activity which might affect interstate commerce, were unfaithful to the intent of the framers, casuistical, and wrong to begin with.

Mr. Tribe also simply discounts as irrelevant the fact that in recent years, the modern court has become considerably more serious and more respectful of the Constitution. The United States v. Lopez decision in 1995 represented a major change of direction.

Liberal constitutional jurisprudence has an interested double-joined quality. The actual language, meaning, and intent of the Constitution are to be looked upon as inherently factually unknowable, as cryptic apothegms from a distant and fundamentally alien civilization, open to creative interpretation and subject to being overruled by the privileged moral insights of the contemporary elect at will. But the windy and vaporous decisions of the New Deal court, ah! they are sacred and immovable compass points of Constitutionality. As Robert H. Jackson writes, so it must be forever.

Larry Tribe is clearly whistling in the dark, repeating a happy liberal fantasy offered by Sam Stein over at HuffPo last week, that Antonin Scalia will apply the same statism that went into his concurrence with the decision in Gonzales v. Raiches upholding federal criminalization of home-grown marijuana. Personally, I think Messrs. Stein and Tribe are mistaken.

Even if the Necessary and Proper clause can be adduced to support a federal system of interstate regulation in the case of marijuana prohibition, a federal law prohibiting a particular activity like the use of marijuana differs distinctly from a federal law imposing an obligation to perform an affirmative act, from a law making Americans purchase something. Upholding a federal power to forbid does not necessarily imply a belief in a further federal power to compel.

Mr. Tribe, I suspect, apprehends himself that distinction, since he finds it desirable to use his literary powers to transform the passive state of American citizens living their lives prior to the imposition of Obamacare into an active assertion of an innovative right.

Only a crude prediction that justices will vote based on politics rather than principle would lead anybody to imagine that Chief Justice John Roberts or Justice Samuel Alito would agree with the judges in Florida and Virginia who have ruled against the health care law. Those judges made the confused assertion that what is at stake here is a matter of personal liberty — the right not to purchase what one wishes not to purchase — rather than the reach of national legislative power in a world where no man is an island.

It would be asking a lot to expect conservative jurists to smuggle into the commerce clause an unenumerated federal “right” to opt out of the social contract.

In reality, Americans have a social contract. It is a written one called the Constitution of the United States. That social contract forbids Obamacare.

Well, now that half of all the states in the Union are in court asking that the democrat Health Care Reform Bill be struck down as unconstitutional, it seems to me increasingly less likely that the Supreme Court will feel able to shirk making a historic decision.

[T]he newly elected governors of Ohio, Oklahoma, Maine, and Wisconsin have all decided to sue the Obama administration in hopes of stopping Obamacare. Specifically, Gov. Mary Fallin of Oklahoma has announced that the Sooner State will pursue its own case against the law, while Govs. John Kasich® and Scott Walker® (of Ohio and Wisconsin respectively) will add their states to Florida’s multi-state suit. And yesterday, newly sworn-in state Attorney General William Schneider announced Maine would also join the the Florida litigation. That brings the number of states on the Florida suit to 23 and the total number of states suing to stop Obamacare (which includes Virginia and Oklahoma) to 25.

Someone leaked to Ed Whelan, NR’s legal issues blogger, a pre-SCOTUS-nomination “Dear Mr. President” letter from Larry Tribe at Harvard discussing appointment strategy containing some very candid and interesting observations on the “wise Latina.”

As Jon Adler observed over at Volokh, leftwing Larry Tribe has essentially the same point of view on Sotomayor that Jeffrey Rosen expressed in New Republic.

If you were to appoint someone like Sonia Sotomayor, whose personal history and demographic appeal you don’t need me to underscore, I am concerned that the impact within the Court would be negative in these respects. Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.

Erin Miller, at SCOTUSblog, live blogged the announcement:

Erin:
Alito announces McDonald v. Chicago: reversed and remanded
Monday June 28, 2010 10:04 Erin
10:04

Tom:
Gun rights prevail
Monday June 28, 2010 10:04 Tom
10:05

Erin:

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense
Monday June 28, 2010 10:05 Erin
10:05

Tom:
5-4
Monday June 28, 2010 10:05 Tom
10:05

Erin:
Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.
Monday June 28, 2010 10:05 Erin
10:05

Tom:
The majority seems divided, presumably on the precise standard
Monday June 28, 2010 10:05 Tom
10:06

Erin:
The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.
Monday June 28, 2010 10:06 Erin
10:06

Erin:
Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause.
Monday June 28, 2010 10:06 Erin
10:07

Erin:
Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

Evidently, the Court actually did rule that the 14th Amendment’s Incorporation of the Bill of Rights makes applicable the Second Amendment to the states, limiting the right of states and municipalities to restrict the right of Americans to keep and bear arms.

Elena Kagan says (in a speech at Case Western Reserve in 1997) she “loved what happened in the Bork hearings… The Bork hearings were great, the Bork hearings were educational. The Bork hearings were the best thing that ever happened to Constitutional Democracy.”

0:19 video

From Breitbart via Glenn Reynolds.

As Dean of Harvard Law School, Elena Kagan not only moved Harvard away from teaching the case method (invented at Harvard circa 1870), she eliminated Constitutional Law from the list of required courses.

As CNS reports, American Constitutional Law was demoted in favor of more international perspectives.

[I]n a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe—global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.

“Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.

Among the three new required courses Kagan introduced, one focuses on public international law, involving treaties and international agreements, and the second is on international economic law and complex multinational financial transactions, according to a Harvard news release.

But the third course, on comparative law, “will introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,” the release said.

What could be a more eloquent demonstration of the precise level of deference to the US Constitution Ms. Kagan would bring to the Supreme Court?

Personally, I tend to suspect that Socialism functions in much the same way for these people that Religion used to for earlier establishmentarians. One regularly attends services and is officially a member of the church, but it has not got a lot to do with one’s actual business life.

What is interesting about the nomination is that all the criticisms serious people have lobbed about so far are true. Yes, she is an ace Ivy League networker. Yes, career seems to have been all, which speaks of certain limits, at least of experience. She has been embraced by the media elite and all others who know they will be berated within 30 seconds by an irate passenger if they talk on a cellphone in the quiet car of the Washington-bound Acela. (If our media elite do not always seem upstanding, it is in part because every few weeks they can be seen bent over and whispering furtively into a train seat.) Ms. Kagan and her counterparts all started out 30 years ago trying to undo the establishment, and now they are the establishment. If you need any proof of this it is that in their essays and monographs they no longer mention “the establishment.”

Ms. Kagan’s nomination has also highlighted America’s ambivalence about what we have always said we wanted, a meritocracy. Work hard, be smart, rise. The result is an aristocracy of wired brainiacs, of highly focused, well-credentialed careerists. There’s something limited, even creepy, in all this ferocious drive, this well-applied brilliance. There’s a sense that everything is abstract to those who succeed in this world, that what they know of life is not grounded in hard experience but absorbed through screens—computer screens, movie screens, TV screens. Our focus on mere brains is creepy, too. Brains aren’t everything, heart and soul are something too. We do away with all the deadwood, but even dead trees have a place in the forest.

The ones on top now and in the future will be those who start off with the advantage not of great wealth but of the great class marker of the age: two parents who are together and who drive their children toward academic excellence. It isn’t “Mom and Dad had millions” anymore as much as “Mom and Dad made me do my homework, gave me emotional guidance, made sure I got to trombone lessons, and drove me to soccer.”

We know little of the inner workings of Ms. Kagan’s mind, her views and opinions, beliefs and stands. The blank-slate problem is the post-Robert Bork problem. The Senate Judiciary Committee in 1987 took everything Judge Bork had ever said or written, ripped it from context, wove it into a rope, and flung it across his shoulders like a hangman’s noose. Ambitious young lawyers watched and rethought their old assumption that it would help them in their rise to be interesting and quotable. In fact, they’d have to be bland and indecipherable. Court nominees are mysteries now.

Which raises a question: After 30 years of grimly enforced discretion, are you a mystery to yourself? If you spend a lifetime being a leftist or rightist thinker but censoring yourself and acting out, day by day, a bland and judicious pondering of all sides, will you, when you get your heart’s desire and reach the high court, rip off your suit like Superman in the phone booth and fully reveal who you are? Or, having played the part of the bland, vague centrist for so long, will you find that you have actually become a bland, vague centrist? One always wonders this with nominees now.

She does not believe the First Amendment means what it says.

WSJ:

Mr. Obama noted that as Solicitor General her “passion for the law” had led her make this year’s landmark campaign finance case, Citizens United v. FEC, her first argument before the Supreme Court.

“Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case,” Mr. Obama said, Elena Kagan took it on bravely. “I think it says a great deal about her commitment to protect our fundamental rights,” he continued, “because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”

She does not believe the Second Amendment means what it says.

Bloomberg:

Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol. ...

The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”

But her recently unearthed college thesis shows that she once thought a lot more highly of socialism.

pdf

In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness.

Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties? Through its own internal feuding, then, the SP [Socialist Party] exhausted itself…

The story is a sad a but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. ... In unity lies their only hope.”

She is the perfect liberal candidate.

Michael Filozof (recently an adjunct instructor at Niagra County Community College), at American Thinker, denounces the elite conspiracy that rules America.

If it sometimes seems that the nation is governed by an elite liberal clique of college fraternity and sorority pals who are out of touch with average Americans, that’s because it’s largely true. Every president, and almost every presidential candidate for the last two decades has been a graduate of Harvard or Yale, and if Kagan gets confirmed by the Senate every member of the Supreme Court will have been a Yale or Harvard attendee, too.

The 1988 presidential election was a contest between Harvard law grad Michael Dukakis and Yalie George H.W. Bush. Yale Law grads Bill and Hillary Clinton came to power in 1992, beating Washburn alum Bob Dole in 1996.

The election of 2000 produced an interesting result: George W. Bush, a graduate of both Yale and Harvard (but according to his leftist critics the dumbest president ever) beat another Harvard grad, Al Gore, who is supposedly so brilliant he won a Nobel Prize. And in 2004 Bush beat fellow Yale grad John Kerry, whose grades at Yale were worse than Bush’s grades.

The election of 2008 saw the ascension to the presidency of Harvard graduate Barack Obama, who beat Navy grad John McCain. According to his supporters like Michael Beschloss, David Brooks, and Colin Powell, Obama is “brilliant” and “transformational” – yet oddly, he never published anything as first black president of the Harvard Law Review, and unlike Bush, Kerry and McCain, his grades have never been released.

On the Supreme Court, Justices Alito, Sotomayor, and Thomas are Yale Law grads, while Scalia, Roberts, Breyer and Kennedy all went to Harvard Law. Justice Ginsberg graduated from Columbia Law, but she attended Harvard before transferring there. The odd man out is the retiring Justice Stevens, who got his law degree from Northwestern, soon to be replaced by Harvard’s Kagan.

What shall we make of this preponderance of Yale-Harvard grads in elite positions of our society?

It’s much more complicated that that, I’m afraid. Mr. Filozof is not wrong, of course, about liberal culture dominating at Harvard and Yale, as at all elite institutions of higher education, but both Yale and Harvard do produce some prominent conservatives. Clarence Thomas is the soundest member of the Supreme Court, and he went to Yale Law. George W. Bush was, after all, if not entirely conservative, at least decidedly anti-liberal establishment which hated him like poison.

There is a strong conservative presence at Yale. There is even some conservative presence in Cambridge. It’s just the case that conservatives are less welcome in the establishment in many areas, and successful careerists (like Elena Kagan, read David Brooks on Kagan and conformity) are much more commonly conventionally liberal.

——————————————————
At Volokh, David Bernstein, Yale Law ‘91, graciously stands up for other schools:

The president went to Harvard, and barely defeated a primary opponent who went to Yale. His predecessor went to Yale and Harvard, and defeated opponents who went to Yale and Harvard, and Harvard, respectively. The previous two presidents also went to Yale, with Bush I defeating another Harvard grad for the presidency. And once Elena Kagan gets confirmed, every Supreme Court Justice will have attended Harvard or Yale law schools.

I know that Harvard and Yale attract a disproportionate percentage of America’s talented youth, but still, isn’t this a bit much?

I think the current Harvard-Yale monopoly is really just happenstance and coincidence. I feel sure that, if we live long enough, we’ll see people from UVA, Chicago, and even Stanford, and Columbia on the Court again.

By recent standards, Elena Kagan has an unconventional background.

Kagan would be the first justice without judicial experience in almost 40 years. The last two were William H. Rehnquist and Lewis F. Powell Jr., both of whom joined the court in 1972.

This is not a good thing.

At least, she is a law professor, not an environmentalist poet. But even a dean and law professor is coming out of an ivory-tower academic milieu in many respects far more untethered from reality than the bench and far, far more culturally left wing.

MSNBC sums up her entire background.

She is close to Obama. She evidently attempted to recruit him as a full-time law school faculty member at Chicago.

Obama is thought by some to have chosen her as an intellectual counterweight to Chief Justice Roberts. But I think she was probably really chosen on the basis of her collegiality and talent for negotiation and persuasion, as demonstrated by her performance as Dean of Harvard Law School.

Deans of elite major academic institutions of that kind must be personable and articulate enough to function as public figures and institutional symbols. A dean is also an administrative officer presiding over a restive community of powerful interest groups quite capable of making serious trouble when not satisfied and handled with tact. The dean of Harvard Law is, of course, inevitably an operator, a thoroughgoing realist and pragmatist skilled at getting her way, but knowing very well what the limits of possibility and acceptability are.

She is short, plump, unattractive, and of heavily ethnic appearance. She must be quite brilliant and possess enormous personal charm to have overcome those obstacles to become Dean of Harvard Law.

I think Obama is right to believe she is likely to be influential at the Supreme Court through personal charm and persuasion.

Media Matters is hastily assuring everyone that she is not a radical or a socialist.

Well, no dean of Harvard Law School can possibly be regarded as really radical. But there can be no doubt that she is an echt liberal Jewish law professor with strong roots on the political left. She clerked for Thurgood Marshall, and has referred to him as “the greatest lawyer of the 20th century.” Obviously, that particular opinion demonstrates a powerful emotional connection with Civil-Rights-ism and complete identification with the conventional leftwing narrative of the progressive triumph over American oppression through a series of expansions of federal power and admirable end-runs around “outworn” Constitutional obstructions.

Still, she is replacing Justice Stevens, and we can console ourselves that it seems impossible that Obama could appoint anyone inclined to vote worse.

Yahoo News:

The Supreme Court is closing its iconic front entrance beneath the words “Equal Justice Under Law.”

Beginning Tuesday, visitors no longer will ascend the wide marble steps to enter the 75-year-old building. Instead, they will be directed to a central screening facility to the side of and beneath the central steps that was built to improve the court’s security as part of a $122 million renovation.

Two justices, Stephen Breyer and Ruth Bader Ginsburg, called the change unfortunate and unjustified.

Breyer said no other high court in the world, not even Israel’s, has closed its front entrance over security concern. ...

Other justices, including Chief Justice John Roberts, have spoken fondly of being able to walk up the steps and through the 1,300-pound bronze doors at the center of the court’s columned entryway. Justice Anthony Kennedy told C-SPAN last year that the steps and the words, written by building architect Cass Gilbert, were intended to inspire visitors and justices alike.

The court said the new entrance grew out of two independent security studies in 2001 and 2009.

The fortress-mentality that has taken over all the court houses I’ve visited in recent years has finally reached the Supreme Court of the United States.

The monumental entrance is just not ideally conducive to electronic searches, so it will no longer be used for its intended purpose.

In my lifetime, we’ve gone from the America of Norman Rockwell to the Amerika of Franz Kafka and the security state that makes you remove shoes in airport boarding lines. Arriving visitors and attorneys will get to slink in some subterranean bunker entrance where they can be properly channeled through security stops. Our courthouses are not open to the public any longer. Who knows? Someone might try to rebel and attack the authorities. All our officials need constant protection from us.

I can remember just a bit over a decade ago being in the Clinton County Courthouse in Lock Haven (Pennsylvania) researching a few deeds in the Recorder’s Office. There were some good old boys in camouflage, their shotguns leaning on the wall, practicing turkey calls in the corridor while the ladies in the sheriff’s office critiqued their performances through the open doorway.

Today, you get searched every time you walk into a courthouse. The first time I ran into this kind of crap outside the big city was in Danbury, Connecticut in the mid-1990s. The rent-a-cop demanded I remove my belt, and in my outrage and frustration I delivered an indignant ex tempore sermon on the subject of the decline of freedom in the United States to the general population in the hallway.

The security guard scoldingly informed me that I should be grateful that he was protecting a mere civilian like me against someone coming into the building with a gun and injuring me. He then warned me against openly challenging official policies.

My wife wasn’t present, and I got a little more angry.

“Why exactly is somebody carrying a gun such a big deal?” I deliberately responded. “You have a gun, you little pipsqueak.” I observed, “I don’t, and I’m not afraid of you.” I then leaned toward him, invading his personal space and grinned, implicitly offering him an invitation to reach for it, feeling quite sure I could swat him before he could clear his holster. He thought seriously about it for a few seconds, and decided not to try.

I got some mixed reactions from the crowd. Several people gave me some very fishy looks. A few guys grinned. The security guard did his best to look intensely occupied, and the moment passed.

[B]eginning, roughly, with the center-most candidate and moving left, that list likely includes:

Merrick Garland – a former federal prosecutor and current D.C. Circuit appeals judge. A Clinton appointee, Garland is well-liked by Democrats and even some Republicans in the Senate.

Elena Kagan – The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. She is well-respected by just about everybody on both sides, but lacks the paper trail that would reveal just how far to the left she’d sit.

Diane Wood – Another Clinton appointee, considered the heaviest liberal counterweight to the conservative Chicago Seventh Circuit Court of Appeals dominated by Richard A. Posner. Wood was a colleague of President Obama at the University of Chicago Law School.

Pamela Karlan – A professor at Stanford Law School, Karlan is a longshot once was described by the New York Times as a “snarky. . . Antonin Scalia for the left.” Karlan is openly gay, and an outspoken liberal.

“Would I like to be on the Supreme Court?” Ms. Karlan asked once asked during a Stanford graduation address. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”

A longer list would include some Obama DOJ officials / liberal legal intellectuals like Harold Koh and Cass Sunstein. And the administration reportedly vetted a number of politicians for the Sotomayor spot that could be reconsidered here, including Homeland Security Secretary Janet Napolitano (“the system worked”), Sens. Byron Dorgan (D., N.D.) and Claire McCaskill (D., Mo.), and Michigan Governor Jennifer Granholm (D.)

My two cents: It’s Kagan or somebody nobody is even talking about.

I suspect Obama is going to go farther leftward than most people expect.

As the Hill explains, Rep. Louise Slaughter (D- 30 NY), Chairman of the House Rules Committee, has devised a bizarre stratagem, which is being referred to as the “Slaughter solution.” Democrats plan to vote in the Senate that they deem the Senate bill to have passed the House, when it actually has not been voted on by the House.

House Speaker Nancy Pelosi is leaving the door open on using a controversial procedure to move healthcare through the House.

The process would allow the House to “deem” the Senate bill passed when it votes on a package of changes to that legislation, perhaps as early as this weekend.

The procedure involves crafting a rule allowing for consideration of a reconciliation “fixers” bill that deems the Senate bill already approved by the House. Aides to the Speaker said the option is “under consideration.”

The only problem with all this is that it is flagrantly and outrageously unconstitutional.

Michael W. McConnell, a Constitutional Law professor at Stanford, explains the problem.

[The Slaughter solution] may be clever, but it is not constitutional. To become law—hence eligible for amendment via reconciliation—the Senate health-care bill must actually be signed into law. The Constitution speaks directly to how that is done. According to Article I, Section 7, in order for a “Bill” to “become a Law,” it “shall have passed the House of Representatives and the Senate” and be “presented to the President of the United States” for signature or veto. Unless a bill actually has “passed” both Houses, it cannot be presented to the president and cannot become a law.

To be sure, each House of Congress has power to “determine the Rules of its Proceedings.” Each house can thus determine how much debate to permit, whether to allow amendments from the floor, and even to require supermajority votes for some types of proceeding. But House and Senate rules cannot dispense with the bare-bones requirements of the Constitution. Under Article I, Section 7, passage of one bill cannot be deemed to be enactment of another.

The Slaughter solution attempts to allow the House to pass the Senate bill, plus a bill amending it, with a single vote. The senators would then vote only on the amendatory bill. But this means that no single bill will have passed both houses in the same form. As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the “exact text” must be approved by one house; the other house must approve “precisely the same text.”

These constitutional rules set forth in Article I are not mere exercises in formalism. They ensure the democratic accountability of our representatives. Under Section 7, no bill can become law unless it is put up for public vote by both houses of Congress, and under Section 5 “the Yeas and Nays of the Members of either House on any question . . . shall be entered on the Journal.” These requirements enable the people to evaluate whether their representatives are promoting their interests and the public good. Democratic leaders have not announced whether they will pursue the Slaughter solution. But the very purpose of it is to enable members of the House to vote for something without appearing to do so. The Constitution was drafted to prevent that.

The final obstacle to democrat passage of the Health Care Bill may yet prove to be the Supreme Court.

If Obamacare is enacted via deeming as the Slaughter solution proposes, avoiding an actual vote on the Senate bill in the House, and Barack Obama goes ahead, signs it, and claims that it is now the law of the land, Republicans can walk right over to the Supreme Court and ask for a ruling on the constitutionality of deeming instead of voting. Any bets on how that is going to turn out?

Reading the tea leaves is not very hard, since Justice Anthony Kennedy these days casts the deciding vote.

[D]uring Tuesday’s arguments, the justices who formed the majority in the D.C. case said they had already decided that gun rights deserved national protection.

Justice Anthony M. Kennedy said the individual right to bear arms is a “fundamental” right, like the other protections in the Bill of Rights. “If it’s not fundamental, then Heller is wrong,” he said, referring to the D.C. ruling, which he joined. Roberts and Justices Antonin Scalia and Samuel A. Alito Jr. echoed the same theme.

At one point, Justice John Paul Stevens proposed a narrow ruling in favor of gun rights. Two years ago, he dissented and said the 2nd Amendment was designed to protect a state’s power to have a “well regulated militia.”

Now, however, Stevens said the court could rule that residents had a right to a gun at home, but not a right “to parade around the street with a gun.”

A lawyer representing the National Rifle Assn. scoffed at the idea and opposed a “watered-down version” of the 2nd Amendment.

Scalia also questioned the idea. In his opinion two years ago, he described the right to bear arms as a right to “carry” a weapon in cases of “confrontation.” Such a right would not be easily limited to having a gun at home.

The justices will meet behind closed doors to vote this week on the case of McDonald vs. Chicago. It may be late June before they issue a written ruling.

Anne Althouse is at her best when she is cutting.
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Texian, commenting at Breitbart, remarks: The scary part is that four justices think that this does NOT violate the First Amendment. Hat tip to the Barrister.
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Bird Dog, at Maggie’s Farm, recommends going to Yale so you can use the Yale Club of New York City, conveniently located on Vanderbilt Avenue right across the street from Grand Central.

It’s easier than that. They even let people who went to Dartmouth and University of Virginia have memberships, and a fair number of clubs in other cities have reciprocal privileges.

It is the cheapest hotel you’d want to stay at in NYC. The second floor lounge is a peaceful refuge where you can read the paper, sip your drink, and watch traffic bustle busily around the PanAm Building out the window. The bar serves generous drinks. Harvard’s New York Club has a larger bar with good big game trophies, but it’s much farther away from the trains and it has a lot fewer rooms to stay in.

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In the latest, Jan/Feb 2010, issue of the Yale Alumni Mag, the same chap was eulogized by two classes.

1968:

Don Masters started with us in Woolsey Hall in September 1964, served with distinction as an officer in the 82nd Airborne in Vietnam, and completed his Yale degree in 1972. He practiced law in New York City and in Denver through his career, as well as serving in entrepreneurial and general counsel roles. He was particularly active in the recovery community in the Rocky Mountain region. He loved touring on his motorcycle, and died August 31 at a beautiful location near Salmon, Idaho, doing what he loved.

1972:

On a sad note, I received notification that Don Masters was killed some time ago in a motorcycle accident in a remote part of Idaho. His body was only recently found, and he was buried in Arlington National Cemetery, having served with distinction in Vietnam.

Sounds like someone I would have liked to have known.

Courtesy of our elite law schools, Shearman & Sterling, and a liberal Supreme Court majority, some news agency reports that federal judges are busy right now turning captured jihadis loose.

Complying with a Supreme Court ruling last year, 15 federal judges in the U.S. courthouse (In Washington, D.C.) are giving detainees their day in court after years behind bars half a world away from their homelands.

The judges have found the government’s evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners. ...

Bush administration Defense Secretary Donald Rumsfeld once promised Guantanamo held “the worst of the worst.” The judges here have rejected pleas for release from eight detainees, but they have concluded the government doesn’t even have enough evidence to keep 30 other detainees behind bars.

“There is absolutely no reason for this court to presume that the facts contained in the government’s exhibits are accurate,” District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.

“Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said,” Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaida forces.

Sonia Sotomayor’s dismal record of Supreme Court reversals is worse by one more. It now stands 6 out of 7, with the Court, however, unanimously rejecting her argument in the single ruling that was upheld. Sotomayor’s reasoning in that case, however, was not merely rejected. It was scathingly described as “fl(ying) in the face of the statutory language.”

Stuart Taylor Jr. explains that on rejecting Sotomayor’s ruling this time the decision was not even close.

The Supreme Court’s predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.

After all, it was hardly to be expected that the five more conservative justices—who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black—would endorse an Obama nominee’s ruling to the contrary.

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a “disparate-impact” lawsuit—regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: “Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed… opinion” by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg’s 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

It really ought to be a serious factor in the evaluation of a nominee for the Supreme Court that the person has compiled so consistent a record of decisions requiring reversal.

Ricci v. DeStefano

Sonia Sotomayor may not have a long paper trail on hot button social issues, but in one area of the law—campaign finance—she has staked a position that could have far-reaching political consequences.

The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime.

“There hasn’t been one with as vigorously expressed policy views on campaign finance as this one that I am aware of, and I’ve been pretty aware for a number of years,” said James Bopp, a leading conservative attorney who has won four Supreme Court cases challenging campaign finance regulations.

“I can’t think of anybody who has had such a track record,” said Bob Stern, president of the Center for Governmental Studies and a follower of battles on the issue since the early 1970s. “There are clearly going to be cases coming before the court that will be challenges to the law, and there will be some very important cases.”

Sotomayor brings hands-on experience to the issue from her four years of experience on the New York City Campaign Finance Board, an independent, nonpartisan city agency created in 1988. One of the first members appointed to the board by then-Mayor Ed Koch, Sotomayor helped implement—enthusiastically, according to her cohorts—one of the most comprehensive campaign finance laws in the country.

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind such restrictions, questioning the line between campaign contributions and “bribes,” calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.

“The continued failure to do this has greatly damaged public trust in officials and exacerbated the public’s sense that no higher morality is in place by which public officials measure their conduct,” she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.

On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.

In 1996, the Suffolk University Law Review published Returning Majesty to the Law and Politics: A Modern Approach, by Supreme Court nominee Sonia Sotomayor. This article touches on her legal philosophy in general, as well as her understanding of the First Amendment in particular. The views expressed in this article are troubling, and should give all Americans pause.

Judge Sotomayor writes, “The law … is uncertain and responds to changing circumstances.” It is true that some development in the law takes place as new circumstances arise. For instance, courts today are working out the contours of ‘cyber-law’—a concept that was unheard of a mere thirty years ago. With the proliferation of personal computers and the Internet, however, cyber-law is now a rapidly developing body of law. Some of the old rules regarding the formation of contracts have had to be re-considered to take into account e-transactions. And laws regulating what can, and cannot, be posted on the Internet have had to be evaluated in light of First Amendment protections.

To say that the law develops as new situations arise, however, is far different than what Sotomayor is saying. She calls it a “public myth” that law can be stable, or provide predictable results. Instead, she suggests that the law is in such a constant state of flux that one can never be sure what the law is, or what one’s rights or obligations under it are. What we have, she writes, is an “unpredictable system of justice.” And she believes this “continually evolving legal structure” which leads to what she calls “the uncertainty of law” is a good thing for society.

This is a wrong understanding of the role and function of law in our society. Law is not to be uncertain and arbitrary. Rather, it is to provide rules that all must live by, and guidance whereby we can structure our lives. Sotomayor’s position, though, is that such certainty is a bad thing, and uncertainty in the law is the desired result.

This philosophy opens the door for Sotomayor, and judges who believe similarly, to avoid following what the law actually says. It allows them to place “empathy” above impartiality. After all, if the law is uncertain and constantly changing, why shouldn’t a judge rule in favor of the party that she likes best or agrees with most? Sotomayor’s philosophy facilitates the type of judicial activism and legislation from the bench that decides cases according to what the judges personally believe should be the correct result, instead of what the law actually says should be the correct result. It also destroys any confidence Americans might have in the law’s fairness, if judges are free to make rulings which go against what the law says in order to benefit parties they like or agree with.

Perhaps nowhere is Judge Sotomayor’s problematic philosophy better illustrated than in her approach to campaign finance law. In Returning Majesty to Law and Politics, she compares restrictions on the fundamental First Amendment right of citizens to engage in political speech and association by making contributions to candidates, with restrictions on gift-giving to politicians. Because gift-giving can be restricted, she seems to say, contributions should be restricted, too. She suggests that both gifts and contributions can function as bribes, and seems to be open to the elimination of what she terms “private money” from politics.

The problem with that reasoning, of course, is that there is a difference of constitutional magnitude between buying lunch for a bureaucrat and making of a political contribution to a candidate. The Founders thought that the right of Americans to engage in political speech and association was so important that they enshrined it in the First Amendment to the Constitution and the First Amendment protect campaign contributions.

Our Constitution, including the First Amendment, should not be regarded as evolving. Rather, it should be understood as a constant guarantee: It is a contract between the previous generation of Americans and this one, and between this generation of Americans and the next one. It assures us, and each succeeding generation of Americans, of the nature of the Republic and our rights within it. And so, our freedom to engage in political speech and association guaranteed by the First Amendment—including our right to make contributions to the candidates whose message we agree with—should be absolute. It should not be subject to the whim of a judge who believes that the law is uncertain and constantly evolving.

Judge Sotomayor, however, appears to disagree. While her thoughts regarding campaign contributions are difficult to discern from her law review article, they are more clear in a decision she signed onto in 2005. This case, known as Randall v. Sorrell when it was before the Second Circuit Court of Appeals, involved a challenge to Vermont’s contribution and expenditure limits. A three-judge panel of the Second Circuit upheld the district court’s decision that the contribution limits were constitutional, but determined that the case should be remanded to the district court for reconsideration of the expenditure limits. The plaintiffs in that case asked for the full Second Circuit to rehear the case, and the Second Circuit denied that rehearing. (The plaintiffs would eventually win in 2006 at the Supreme Court when, in Randall v. Sorrell, the Court held that both the contribution and expenditure limits were unconstitutional).

Judge Sotomayor signed onto an opinion written by two other judges which concurred in the decision to deny rehearing. This opinion which she signed began by noting that the question before the Court involving whether the plaintiffs’ First Amendment rights were being trampled was not important enough to justify rehearing the case. Instead, the judges noted that disputes which are highly political or partisan should not be addressed by the courts.

There’s just one little problem with that: If the Court will not vindicate our First Amendment rights, who will? Judge Sotomayor is correct when she observes that campaign finance is partisan and politicized. Incumbents frequently enact campaign finance laws in order to protect themselves, and if they can do so in a way that benefits their political party, so much the better. Far from providing that the courts be reluctant to involve themselves in such matters, the Founders envisioned a vigorous role for the courts in upholding First Amendment freedoms.

A judge who sees the law as constantly changing and evolving, however, feels more free to refuse to vindicate Americans’ rights when she personally does not think that Americans should have them. So, since Sotomayor is of the opinion that severe restrictions (or, even the elimination) on private money in politics is acceptable, she did not feel the need to consider the plaintiffs’ First Amendment rights in Randall.

Such a judicial philosophy is troubling. It places all Americans’ rights at risk. Judge Sotomayor should be questioned on this extensively, and should not be confirmed if this is really her view.

Meanwhile she has a pretty decent chance of receiving a further reversal in Ricci v. DeStefano, an affirmative action case from New Haven, Connecticut involving white firemen being denied promotion because no minority applicants scored satisfactorily on the promotion exam. Sotomayor was part of a three judge panel which supported the city against the firemen, and voted against the full appeals court reviewing the case.

The New Republic’s Legal Affairs editor Jeffrey Rosen is today urging Sonia Sotomayor’s confirmation, and claims that “conservatives are misreading” him on Sotomayor, but back on May 4 Rosen wrote the following paragraphs as part of an article titled “The Case Against Sotomayor.”

[D]espite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I’ve been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren’t penetrating and don’t get to the heart of the issue.” (During one argument, an elderly judicial colleague is said to have leaned over and said, “Will you please stop talking and let them talk?”) Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: “She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media.”

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions—fixing typos and the like—rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel’s opinion that contained “no reference whatsoever to the constitutional issues at the core of this case.” (The extent of Sotomayor’s involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. “I know the word on the street is that she’s not the brainiest of people, but I didn’t have that experience,” said one former clerk for another judge. “She’s an incredibly impressive person, she’s not shy or apologetic about who she is, and that’s great.” This supporter praised Sotomayor for not being a wilting violet. “She commands attention, she’s clearly in charge, she speaks her mind, she’s funny, she’s voluble, and she has ownership over the role in a very positive way,” she said. “She’s a fine Second Circuit judge—maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?

By May 8, Rosen was regretting his earlier title, and trying to qualify his own position. But he still took the occasion to publish excerpts from Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes rating of judges based on reviews of attorneys appearing before them.

Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Here it is:

Sotomayor can be tough on lawyers, according to those interviewed. “She is a terror on the bench.” “She is very outspoken.” “She can be difficult.” “She is temperamental and excitable. She seems angry.” “She is overly aggressive—not very judicial. She does not have a very good temperament.” “She abuses lawyers.” “She really lacks judicial temperament. She behaves in an out of control manner. She makes inappropriate outbursts.” “She is nasty to lawyers. She doesn’t understand their role in the system—as adversaries who have to argue one side or the other. She will attack lawyers for making an argument she does not like.”

Not all of Sotomayor’s lawyers’ evaluations in other areas were this negative. As the Almanac puts it “most of lawyers interviewed said Sotomayor has good legal ability,” and “lawyers said Sotomayor is very active and well-prepared at oral argument.”

You can get an idea of what Sonia Sotomayor is like from this 2:10 video excerpt from what seems to be a panel discussion of legal career options at Duke University Law School in 2005. We will be seeing her in the clip, indicating with derision her contempt for the notion of judicial restraint, a good deal in the near future.

R. Emmett Tyrrell offers a column on the retirement of Justice David H. Souter, observing that while we conservatives are not unhappy to see him go, neither is he particularly admired or respected by the liberals. Such, I suppose, are the inevitable unappetizing fruits of Souter’s arid and sterile Brahmanic legal positivism.

Is it possible that Justice David H. Souter has sensed what I have sensed in reading the liberals’ dutiful adieus to him, their judicial Benedict Arnold? They all are snickering behind their hands. Sure, he pleased them enormously with his 19 years of tergiversations against conservative jurisprudence, after being President George H.W. Bush’s “conservative” Supreme Court nominee. But through all Souter’s years here in Washington, he revealed himself to be a stupendously self-absorbed oddball and not much else. He fell far short of the liberals’ conception of a progressive Supreme Court dissenter, to wit: a charismatic, outspoken, slightly outre intellectual on the model of William O. Douglas.

Souter has been, as The Washington Post puts it, notable for his “quirky independence in spurning the right.” The operative word here is “quirky.” It is not meant as a compliment. Our liberals admire eccentricity but not the eccentricity of a misanthropic loner. Thus, in every supposedly friendly retrospective that I have read of him since he informed the Democratic president that he, a Republican’s Supreme Court nominee, is retiring, the liberals have stressed his weirdness: the misfit, the loner, the guy whose luncheon consists of yogurt and an apple, which he eats “core and all.” That was The New York Times speaking. ....

These are the details that the liberals have been relating as they recapitulate his career as a Republican-turned-progressive. As I say, they are snickering.

They have very little to say about Souter’s work on the court other than that he sided routinely with the liberal minority. I can understand their reticence. After conferring with scholars who follow the court, I can report that they recall not one opinion of his that was memorable for anything other than smugness. As one told me, Justice Stephen Breyer’s dissents have been “thought-provoking,” Justice John Paul Stevens’ “intelligent.” Souter, in his dissents, has been simply a liberal tag-along. There is something about him that is not quite adult. He asks questions persistently, the liberals say with a wink. Well, so does a lost child. ..

Souter’s bland years on the court should remind us how important it is for our leaders to have experience. President Bush and his advisers might have thought it was clever of them to nominate a judge with almost no paper trail. After serving on the New Hampshire Supreme Court for seven years, Souter served just two months on the 1st U.S. Circuit Court of Appeals before his nomination. But for almost two decades, it has been clear that he is out of his depth. The troubling thought is that the president who is about to nominate Souter’s replacement is out of his depth, too.

I began this column with a question. Does the departing justice realize that the liberals, whom he benefited, are snickering? The answer is no. As with much else, he is oblivious.

[I]ronically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here’s the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter’s retirement was in play:

Does Arlen Specter’s defection from R to D strengthen the President’s hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf’s post is to Congress Matters, which has the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTE
The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he’s just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I’m sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.