All Blog Posts from Courtwatch

The Supreme Court's 2009-2010 term is already shaping up to be an odd one.

First, it started four weeks before the first Monday in October, when the Justices in a September session took up federal campaign finance laws. Based upon the questions (and answers) during a rare summer oral argument, it is virtually a lock that a majority of the Justices will vote to overturn the Court's own precedent and dramatically reduce the impact and effect of the McCain-Feingold law. And if this occurs it will probably be the biggest decision of the term.

Meanwhile, the Court's work this fall, winter and spring is almost entirely devoid of "traditional" hot button cases. I can't remember the last time that occurred. At least at the moment, subject to the addition of new cases to be heard early in 2010, there is no grand abortion case, no Second Amendment tussle, no dynamic environmental law fights over owls or whales or snails, not even a resonant showdown between employee and employee a la Lily Ledbetter. Right now, there isn't even a good, solid, terror law case set for review, although that is likely to change as the Justices round out their calendar.

Sure, there will be decisions we'll all be talking about when they come down. There always are. In fact, one of the very first cases of the October term is one of those made-for-cable conflicts involving a series of dog-fighting videos and the first amendment. It's got lots of sound, lots of fury, but it's not likely to change your life or mine (unless you are into such things, in which case shame on you). Lucky for her, Justice Sonia Sotomayor's debut term sure doesn't figure to posses much of the political and partisan steam its recent predecessors have had.

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And so it comes to pass at the United States Supreme Court this week that the constitutionality of a movie about a woman who could easily be a Justice (and who one day may be) will be judged by a woman who actually is.

Justice Sonia Sotomayor, sitting for your first oral argument since joining the Court last month? Meet Hillary Clinton, The Movie. Oh, wait. Perhaps you've already met!

Even though we are weeks away from the first Monday in October, the Court meets this Wednesday, in a rare September session, to evaluate the constitutionality of important campaign finance laws. The case is a big one, but the question at its core is simple: Does the First Amendment distinguish between campaign contributions from individuals and those of corporations?

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Sotomayor ends up with more votes than Samuel Alito and fewer votes than John Roberts and in the end no one is going to remember the margins. She'll now prepare to settle in to the Court, and to a new city, and I'm sure she's already had a peek at some of the briefs in cases she'll begin to help decide when the new term begins in a few weeks.

In some ways this was an easy one for the White House. The president's party controls the Senate by a filibuster-proof majority, the White House selected a nominee with great political symbolism for Hispanics, and Sotomayor had twice been vetted by the Congress over 17 years on the federal bench.

She's not likely to have a huge impact on the Court's ideological makeup because in some ways she's the same sort of moderate liberal that her predecessor, David Souter was. And you can even argue that she is likely to be MORE conservative than he was in certain kinds of cases, like business or law enforcement cases.

Very few things—in law or in life—surprise me anymore. But I was shocked Monday afternoon when Sen. Charles "Chuck" Grassley (R-Iowa) announced that he will vote "no" on the Supreme Court nomination of Judge Sonia Sotomayor. When he so votes this morning before the Senate Judiciary Committee, it will be Sen. Grassley's first "no" vote on a Supreme Court confirmation in his 29 years in the Senate.

This means that Sen. Grassley voted "yes" on Ruth Bader Ginsburg and Stephen Breyer, both of whom were nominated (and confirmed) during the Clinton years, and both of whom currently anchor the Court's "liberal" wing. And Sen. Grassley voted "yes" for the first woman ever to serve on the Court, Sandra Day O' Connor, but not until famously raising doubts about her too-liberal views on abortion rights. O'Connor, remember, was a 1981 Reagan appointee and remains today one of the most beloved Justices of all time.

During her confirmation hearings back in 1993, much was made of Ginsburg's link to the American Civil Liberties Union, where she had served as a member of the Board of Directors before serving as a federal appeals court judge. Much more was made about Ginsburg's card-carrying ties, in fact, than was made about Judge Sotomayor's link, which was far more tenuous, to the Puerto Rican Legal Defense and Education Fund. Both candidates, Ginsburg and Sotomayor, doggedly refused to specifically answer substantive questions about controversial legal topics. So, for that matter, did nominees John Roberts and Samuel Alito. Sen. Grassley voted for them, too.

Ginsburg's ties to the embattled liberal group—back in 1993 it was the poster-child for liberalism, remember-- didn't stop Grassley from acceding to a Democratic president's request. Grassley voted for Ginsburg. And he voted, one year later, for Stephen Breyer, the last Supreme Court pick of the 20th Century. At the time, Sen. Grassley praised then-President Clinton for choosing someone, namely Breyer, "with judicial experience and who understands the limited role of a judge in our democracy."

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It's been ages since CourtWatch offered up one of its early staples; the in-your-face question-and-answer session. Why now? Because it's the middle of summer, dog-days-time, and the law's annual hibernation period is starting to set in all across the country.

Lawyers and judges, plaintiffs and defendants, witnesses and bailiffs, all are heading out, or already have, for their summer breaks. The Justices of the United States Supreme Court have scattered from Washington to the four corners of the world - speaking and teaching about what they do and why. But I am still here. And there are still a few decent legal stories swirling around that merit at least a little attention. So let's begin.

What's going to happen if there is a manslaughter charge against one or more of the doctors who were caring for Michael Jackson at the time of his death?

The most likely charge, based upon what little we now know, would be "involuntary manslaughter," a crime punishable by up to four years in prison. The key element of "involuntarily manslaughter" is a notoriously low bar; anyone who acts "without due caution and circumspection" in the commission of a "lawful act which might produce death" may be convicted. Would the mere administration of drugs do the trick? Stay tuned.




What's the deal with the Obama Administration delaying its report on how to close down the prison at Guantanamo Bay, Cuba?

In my family, we call what Team Obama did on this issue back in January "big eyes." As in, the White House and Justice Department had "big eyes" (unrealistic expectations) about how quickly they could transfers all of the terror detainees to other venues for trial or release or what have you. The fact is, the Bush Administration was trying to do the same for years without success. And "success"—the closing down of the miserable place—will only come when our leaders recognize the need for a new court system specifically designed for these men.

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1. Leahy is a huge fan of the Grateful Dead.

2. Graham thinks Al Qaeda operatives were watching the hearing.

3. Franken will liven up this and every other Committee upon which he serves.

4. Kyl is a better lawyer than Cornyn and Cornyn is a better lawyer than Sessions.

5. 20 percent of the Committee is made up of senators from Minnesota and Wisconsin.

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It takes brains, temperament and really good timing to become a Supreme Court Justice. The legal landscape is littered with the careers of brilliant jurists who weren't the right person in the right place at the right time. And the Supreme Court has been littered with yahoos who lucked out and squeaked through.

What it takes to "pass" modern-day, post-Bork confirmation hearings, however, is a completely different matter. You don't need candor. You don't need courage. You don't need to be right. You don't even have to pretend that you have all the answers. All you really need is patience, a large bladder, thick skin, and the unwavering strength to sit upright and awake, hour after hour, and speak at great length and in serious, sonorous tones without saying anything at all.

John G. Roberts, Jr. accomplished this arduous if fairly mindless feat in 2005 and is now chief justice of the United States. Samuel A. Alito, Jr. did it in 2006 and he's now an associate justice. And Sonia Sotomayor, a wise Latina woman if there ever were one, has just managed to match the boys. She is on her way to getting, oh, I'd say 70 or so votes for confirmation to become only the third woman in American history to land the law's big prize.

With the main part of the Sotomayor confirmation hearing now complete, with the judge finally off the hot seat, it's fair to say she did everything her compulsive White House handlers had hoped she would. She talked at length to her critics on the Senate Judiciary Committee about her "motivational" speeches. If some of her explanations didn't really make sense—and often they didn't—there isn't anything Senate can do about it anyway. What's left to say after you've said sorry about your many "rhetorical flourishes" that fell flat?

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We don’t know precisely where she stands on terror law issues, or abortion and gun rights, or even on business topics. But her lower court records shows a much more practical moderate tone than did the records of Roberts and Alito so that’s a good place to start with any prediction of how she’ll be as a Justice.

She took their best shots and at the end of two days was left standing, or left sitting anyway, leaving many of the senators of both parties frustrated with her failure or refusal to answer substantively on legitimate questions. But we learned from Roberts and Alito and Ginsburg and Breyer that that’s the pass to confirmation.

Although the senators asked her questions in a dozen different ways on dozens of different topics, she didn’t say much differently Wednesday than she did Tuesday. She was very very patient in saying the same things over and over again and that no doubt helps her candidacy—it’s more or less expected.

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More of the same for both the nominee and her Republican critics. She was pressed by Senator Coburn for her views on abortion laws and she refused to offer details. She was pressed by Senator Cornyn on her Wise Latina remark and she again reiterated that what she had said is not what she had meant.

The first round of questioning is nearing an end and it's looking more and more like the second round is not going to be as complete-- there just aren't very many areas left for Committee members to ask her about and some topics, like her views on abortion and gun rights, have been raised over and over again.

She told Senator Coburn that she'd look at foreign law but not rely upon it for conclusions. She told Senator Cardin that she thinks lawyers should do public interest work and she told Senator Cornyn that judges are needed because the law isn't always as clear as he thinks. In other words, her nomination is right on track for confirmation.

She survived her longest day, hour after hour of questions and she never lost her temper or found herself at a loss for words and that in and of itself is a victory for her and the White House. I saw a little flash of anger once, during an exchange with Senator Kyl, when she bluntly told him to look at her long record of judging in answering a question about her fairness and impartiality.

I suspect the White House is delighted with the nominee's first day under questioning. She didn't make any gaffes, she kept her cool, she didn't reveal many hints about her positions in future cases and she explained patiently all those out-of-court statements that got her in a bit of trouble. Let's call it a solid B from the White House perspective.

She pulled a Ginsburg, a Breyer, a Roberts and an Alito, which means she refused over and over again to be drawn into any detail about how she might rule on future cases that would come before her as a Justice--even when she was asked to do so by her Democratic supporters on the Committee.

Republican members put up a little fight-- Senator Kyl was particularly effective in trying to get the judge to explain her Wise Latina remark a little more fully but you get the sense that even they don't really have a ton of ammunition to use against her-- remember she was twice confirmed by this same Committee in the 1990s.

She'll almost certainly finish up on Wednesday, and then other witnesses will testify for and against her, and it's always interesting to see how the politicians react to media coverage of the first day of questioning. Some come out more aggressive on Day Two. Some come out less so.

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