No wonder liberals like Obama and Sotomayor think the Constitution is irrelevant and requires updating.

0:33 video

Hat tip to Ed Morrissey.

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.

Jeff Emmanuel, at Pajamas Media, warns that a recent federal appeals court decision affirming the right of state bureaucrats in Georgia, Florida, and Alabama to overrule physicians and deny care to patients covered by Medicaid prefigures the federal rationing of health care nationwide.

Earlier this month, a panel of the 11th U.S. Circuit Court of Appeals ruled in favor of three states that filed suit to have final medical decision-making authority transferred from doctors to state bureaucrats.

In March, as reported here at Pajamas Media, Georgia, Florida, and Alabama appealed U.S. District Judge Thomas Thrash’s ruling that physicians, not government bureaucrats, were qualified — both legally and medically — to decide what was “medically necessary” for their patients, regardless of bureaucrats’ opinions.

The thrust of the states’ argument in Moore was summed up in the amicus brief filed by the state of Florida, which said, “Treating physicians … cannot be trusted with this sort of decision. When left to their own devices, they advocate for their patients, and deem all manner of unproven, dangerous, ineffective, cosmetic, unnecessary, bizarre, and controversial treatments as ‘medically necessary.’”

The “final arbiter” of medical decisions is and should be “the state,” said attorney Robert Highsmith in March 24 oral arguments — and the panel of the 11th Circuit agreed.

As a result of this ruling, doctors within the 11th Circuit’s jurisdiction will no longer be “left to their own devices” to treat Medicaid patients under their care. However, current events suggest the relegation of medical professionals’ recommendations to the status of mere suggestions pending review by state bureaucrats isn’t likely to be limited to Medicaid cases alone for long.

As taxpayer-funded and bureaucrat-run health care programs like Medicaid and the State Children’s Health Insurance Program (SCHIP) are expanded to include more middle-class Americans, and as the federal government’s control over the health care market grows astronomically under the guise of “health care reform,” the issue of government encroachment on doctor-patient decisions will only increase.

————————–

Moore v. Medows

The District Court held that “[t]he state must provide for the amount of skilled nursing care which the Plaintiff’s treating physician deems necessary to correct or ameliorate her condition.” … While it is true that, after the 1989 amendments to the Medicaid Act, the state must fund any medically necessary treatment that Anna C. Moore requires…, it does not follow that the state is wholly excluded from the process of determining what treatment is necessary. Instead, both the state and Moore’s physician have roles in determining what medical measures are necessary to “correct or ameliorate” Moore’s medical conditions…. The agency may place appropriate limits on a service based on such criteria as medical necessity or on utilization control procedures.” (Citations omitted, emphasis added.)

Ethan Leib notes that Spain just began a judicial investigation into an Israeli strike on a Hamas leader in Gaza in 2002. Meanwhile, the same Spain released a group of Somali pirates, declining prosecution because the offenses took place “2,000 kilometers away.”

It seems curious that the Spanish view of universal jurisdiction applies to Israel, the late General Pinochet, and officials of the Bush administration, but not to pirates, Especially considering the fact that the whole idea of extra-territorial jurisdiction arose in the first place to justify suppressing piracy.

Hat tip to Walter Olson.

Over the last few decades, the powerful impact of Conservatism on jurisprudential reasoning, both in law school publications and in judicial opinions, has caused progressives reluctantly to deal with original intent in Constitutional Law.

Jess Bravin, in the Wall Street Journal, reports on a fascinating new development, in which some liberals are considering a positive embrace of Constitutional Originalism philosophically.

A progressive originalism would reject the ruling of the Slaughter-Houses Cases of 1873 which limited the impact of the 14th Amendment’s guarantee of the “privileges or immunities” of individual citizens against the states.

The libertarian potential of such a move could be tremendous, and the conflict within the legal community on the left between an inclination to suppress States’ Rights while enhancing individual rights claims on the basis of the post-Civil War Amendments versus their love of regulation and generally enthusiastic embrace of the cult of Statism will be absolutely fascinating to watch unfold.

A must read.

Ben Smith, at the Politico blog, joins the conventional chorus of down-shouters, marginalizing everyone with doubts on the question of Barack Obama’s native born status as irrational conspiracy theorists.

Personally, I always experience a dramatic increase in skepticism when I observe the argument from intimidation underway. Whenever people point to a bien pensant media consensus as established and inarguable fact, I start looking around for the alternative theory.

As to Obama’s native born status, I’ve read Internet rumors that say his grandmother supposedly said some time somewhere that he was born in a hospital in Kenya, but I’ve never seen any form of reliable report confirming that.

I’m well aware, and support the fact, that the United States traditionally bases citizenship both on jus sanguinis (citizenship by right of blood descent) and jus soli (citizenship by right of birth on US soil). I also think that if a person elected to national office by 60-odd million votes as the result of a process as expensive, time-consuming, and elaborate as a US Presidential election were to be disqualified by an arcane, subsequently eliminated, technical and ill-conceived provision of 1960s era citizenship laws, that it would be a disaster.

But I do also think the law is the law, and Barack Obama’s citizenship status, which undoubtedly features a number of occasions for questions, ought to have been thoroughly and openly explored before the democrat party ever nominated him.

I think it is probable that democrat party member state officials in Hawaii are telling the truth, and Obama’s birth certificate is real, valid, and in proper order, but I also wonder, if that is the case, why has he spent more than $800,000 (at last count, which was some time ago), fighting lawsuits in numerous states to resist allowing it to be released.

Obama’s effort and expense at litigating only makes sense if there is something to hide. (In an earlier post, I suggested that perhaps he was really named Sue.)

Beyond the alleged birth in Kenya to a slightly underage US citizen mom, there are also obviously live possibilities of problems with conflicting dual citizenships held contrary to US law. Obama might very well have been adopted by Mr. Soetero. His admission to Indonesian schools apparently required Indonesian citizenship. If Obama lost his US citizenship by adoption as a juvenile, he would have had to take official steps later to restore it.

Obama could have in the past claimed to be a British subject by virtue of his father’s Kenyan nationality. It is reported that Obama travelled to Pakistan in 1981, at a time when US citizens were not allowed to enter the country. Those circumstances suggest he could have used a different passport at the time.

There can be no doubt that the national news reporting organizations allowed political partisanship to deter them from undertaking the questioning and scrutiny of the candidacy of Barack Obama that would normally be expected. It would not be hard to argue that, at this point, the country would be better off, our electoral processes better served, simply by averting our eyes from what is bound to be, at most, some technical disqualification, faced with plunging the country into an appalling and unprecedented leadership crisis (and perhaps making that idiot Biden president), but it is simply not true that no rational basis for skepticism of Barack Obama’s eligibility for office exists.

—————————–

Earlier posts.

Clarence Darrow believed in them as useful tools for selecting jurors. Deliberations quotes, and links, 1936 Esquire article.

If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God’s word for that.

As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don’t ask them too many questions; keep them anyhow, especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist with some care, for they may be prohibitionists; but never the Jews and the real agnostics.

Hat tip to Walter Olson.

left:Ali al-Kurdi, Right: Mohammed el-Qahtani in Yemen jail

Susan J. Crawford, the convening authority for military commissions, Bob Woodward gleefully reports, has announced that she is unwilling to try Mohammed el-Qahtani (the intended 20th 9/11 hijacker who missed his flight) because interrogation techniques applied to him, including “sustained isolation, sleep deprivation, nudity and prolonged exposure to cold” impaired the poor chap’s health and thus amounted to torture.

Crawford . . . .said the combination of the interrogation techniques, their duration and the impact on Qahtani’s health led to her conclusion. “The techniques they used were all authorized, but the manner in which they applied them was overly aggressive and too persistent. . . . You think of torture, you think of some horrendous physical act done to an individual. This was not any one particular act; this was just a combination of things that had a medical impact on him, that hurt his health. It was abusive and uncalled for. And coercive. Clearly coercive. It was that medical impact that pushed me over the edge” to call it torture, she said.

MacRanger is unsympathetic.

He says, if discomfort, embarrassment, and water poured on your face are torture, he was tortured himself.

Sustained isolation, sleep deprivation, nudity and prolonged exposure to cold I experienced in basic training. Waterboarding I experienced later during escape and invading training.

Here we have a Bush Administration official, with a long record of working for Dick Cheney, by the way, inhibited from prosecuting a principal participant in the worst attack on the United States in history costing the lives of 3000 innocent civilians
because she is willing to regard discomforts used in interrogation essentially identical to stresses endured by US military personnel in training as “torture.” Once Crawford is gone and some Obama appointee is in her place, we’ll have hairy Pathan mass murderers released because some corporal crushed their spirits with a cutting remark.

All this demonstrates that the Bush Administration approach of military commissions operating at Defense Department level in the full view of the domestic media and the humanitarian bien pensant left was always insane. The correct procedure was always minimum formality and drumhead courts martial for illegal combatants and captured terrorists under the immediate local US military authority followed by speedy dispatch to the Muslim Paradise at rope’s end.

Eugene Volokh discusses U.S. v. Arzberger a case in which a defendant charged with possession of child pornography when released on bail would previously have automatically lost his right to possess firearms simply by virtue of being accused of a federal crime.

The federal magistrate found that, D.C. v. Heller having recognized the existence of a Constitutionally-protected individual right, Due Process comes into play, and it becomes necessary for the Government to establish the existence of a public danger of such a defendant engaging in violent actions using firearms before his Right to Keep and Bear Arms may be infringed.

The US Constitution has begun returning from exile.

Yuma Sun:

The State Bar of Arizona is weighing whether to require new lawyers to swear they won’t let their views on someone’s sexual orientation affect their duty, a move foes said could force attorneys to represent clients whose view they find personally offensive.

Existing rules require an oath saying lawyers “will not permit considerations of gender, race, age, nationality, disability or social standing to influence my duty of care.” The plan being weighed by the bar’s board adds sexual orientation to that list.

Not signing the new oath, if it is adopted, is not an option: Attorneys cannot practice law in Arizona without being admitted to the bar.

The move has provoked severe objections from 31 attorneys who sent a letter to state bar President Ed Novak.

Tim Casey, one of those who is unhappy with the proposal, said it raises all sorts of issues. At the very least, he said, the wording “is so very vague it’s scary.” …

Federal law and federal courts have spelled out that it is illegal to discriminate on the basis of race, religion, age and similar factors. The oath, Casey said, simply mirrors those laws, much in the in the same way that lawyers swear to uphold the state and federal constitutions.

Casey said any move to make sexual orientation one of these “protected classes” should be decided by lawmakers or courts, not by the board of the state bar. …

Casey said he sees a broader agenda at work.

“There are people trying to make it difficult for professionals to exercise their religious convictions, their moral objections or their ethical objections in cases.”

So if a gay activist in Phoenix decides, for example, to sue the Catholic Church to force it to perform gay marriages, any individual attorney, regardless of his political, social, and religious views, could be forced to represent the complaintant under pain of penalties from the state bar.

Paul Moreno, at History News Network, discusses the left’s misuse of rights language as a means of disestablishing the natural rights enshrined in the US Constitution. It’s as if the left discovered a way to apply Gresham’s Economic Law to Constitutional Law: newly invented bogus rights inevitably quickly replace real natural rights in circulation.

In a 2001 interview on Chicago public radio, Obama lamented that “the Supreme Court never ventured into the issue of the redistribution of wealth.” The problem, he said, was that the court “didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution… that generally the Constitution is a charter of negative liberty.”

In this perhaps unguarded moment, Obama became one of the few liberal politicians candid enough to admit that the Constitution poses a fundamental obstacle to their agenda.

This is a popular theory in academic circles. It is the fundamental argument of Cass Sunstein, a colleague of Obama’s at the University of Chicago Law School (now on his way to Harvard), who is often mentioned as an Obama adviser and potential Supreme Court nominee, and the author of The Second Bill of Rights: FDR’s Unfinished Revolution and Why We need it More than Ever.

The second bill of rights idea derived from two famous speeches that Franklin Delano Roosevelt gave—one at the San Francisco Commonwealth Club during the 1932 campaign and his 1944 annual message to Congress. In the Commonwealth Club address, he spoke of the advent of “enlightened administration,” which would redistribute resources in accordance with an “economic declaration of rights.” In his 1944 message to Congress, Roosevelt said that “our rights to life and liberty”—the negative liberty to which Obama referred, had “proved inadequate to assure us equality in the pursuit of happiness.” He claimed that “In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights.” This bill of rights included the right to a job, the right to food and recreation, the right to adequate farm prices, the right to a decent home, the right to medical care, and the right to a good education.

Of course, these are not “rights” at all—not in the sense that the framers and ratifiers of the Declaration of Independence and Constitution used the term–but entitlements. From the founding until the twentieth century, the American regime assumed that government’s purpose was to secure pre-existing natural rights—such life, liberty, property, or association. Everyone can exercise such rights simultaneously; nobody’s exercise of his own rights limits anyone else’s similar exercise. Your right to life or to work or to vote does not take anything away from anyone else. We can all pursue happiness at once. Entitlements, on the other hand, require someone else to provide me with the substantive good that the exercise of rights pursues. The right to work, for example, is fundamentally different from the right (entitlement) to a job; the right to marry does not entitle me to a spouse; the right to free speech does not entitle me to an audience.

The New Deal is often described as a “constitutional revolution.” In fact, it was much more than that. It involved a rejection not just of the structure and principles of the Constitution, but those of the theory of natural rights in the Declaration of Independence—that, as Jefferson put it, governments are instituted in order to secure our rights. Roosevelt envisioned not a new constitution, but a new idea of what Sunstein calls “a nation’s constitutive commitments.”

As to this problem, Sunstein says that “The best response to those who believe that the second bill of rights does not protect rights at all is just this: unembarrassed evasion.”

Many of George W. Bush’s appointments to the federal bench were successfully blocked by democrats despite the former Republican majority, thanks to RINOs like John McCain. Now Obama’s victory opens the door for those bench seats and others opening in the near future to be filled with liberals.

The Washington Post reports democrats happily predicted a return to “balance on the courts,” i.e. liberal domination.

The federal judiciary is on the verge of a major shift when President-elect Barack Obama’s nominees take control of several of the nation’s most important appellate courts, legal scholars and political activists say. With the Supreme Court’s conservative direction unlikely to change anytime soon, it is the lower courts — which dispense almost all federal justice — where Obama can assert his greatest influence.

The change will be most striking on the Richmond-based U.S. Court of Appeals for the 4th Circuit, long a conservative bastion and an influential voice on national security cases, where four vacancies will lead to a clear Democratic majority. Democrats are expected to soon gain a narrower plurality on the New York-based 2nd Circuit, vital for business and terrorism cases, a more even split on the influential D.C. appeals court and control of the 3rd Circuit, which covers Pennsylvania and New Jersey. …

Obama has a huge opportunity,” said Arthur Hellman, a University of Pittsburgh law professor who is an authority on federal courts. “In a very short time, significant segments of the appellate courts, which are the final authority in all but a tiny handful of cases, will be dominated by Democratic nominees.” …

Democrats, who successfully blocked some of President Bush’s 4th Circuit and other appellate nominees, said they will try to win Republicans’ support but made it clear that they will push for quick confirmations. …

The circuit courts of appeals, which cover the nation’s 13 federal judicial circuits, decide more than 30,000 cases a year. The Supreme Court takes fewer than 100 new cases each year.

Control of the appellate courts has shifted with the party in power. Republicans controlled 64 percent of appellate judgeships in 1993, but President Bill Clinton, a Democrat, reduced that to 42 percent by 2001. Bush’s appointees have restored a 56 percent Republican majority of the total authorized judgeships.

With current and future vacancies and Congress likely to pass a bill to create 14 appellate judgeships, Obama is likely to reduce Republican appointees to 42 percent and boost Democrats from the 36 percent to 58 percent during his first term, said Russell Wheeler, a Brookings Institution scholar who studies federal courts.