All Blog Posts from Courtwatch

The United States Supreme Court Monday tackles a sensitive legal issue that has taken on both great political and economic relevance this past year.

At a time when budget shortfalls are causing state and local bureaucrats to release prisoners early from over-crowded and expensive jails, the Justices have chosen to decide whether the Eighth Amendment's prohibition against "cruel and unusual punishment" precludes life sentences without parole for juvenile offenders who have not committed capital crimes.

Two Florida cases bring the topic to the High Court. In one, a 17-year-old was sentenced to life without parole after he was convicted for taking part in an armed home invasion while he was on parole for another crime. In the other, a 13-year-old was sentenced to life without parole after he was convicted for raping an elderly woman.

According to the Sentencing Project, an advocacy organization which tracks such things, of the 111 juveniles around the nation currently serving life sentences without parole for non-capital crimes, 77 are in Florida.

Terrance Jamar Graham and Joe Harris Sullivan, the two young men who are challenging the lengths of their sentences, argue simply that the punishment did not fit their crimes given their respective ages. Lawyers for Sullivan, only 13 when he was sentenced, state the core of his case this way: "Life imprisonment without parole sentences for children of 13 are so vanishingly rare as to make their repudiation by contemporary American society unmistakable." They are thus emphasizing the "unusual" in "cruel and unusual" punishment.

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And so it came to pass that on the day before Halloween 2009 we all were reminded that most of the biggest tricks of the past decade were on us.

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Larimer County Sheriff Jim Alderden (left) was just trying to make the best of a bad situation this past Thursday afternoon when he was called to the chaotic home of Richard and Mayumi Heene in Fort Collins, Colorado.

Now, a few days and countless hours of television face time later, he's just as earnestly trying to save his face and cover his butt.

If the Front Range's ill-fated "balloon ride" were a screenplay, it would have been a remake of "It's a Mad, Mad, Mad, Mad World."

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Supreme Court nominee Sonia Sotomayor has in the course of her long career compiled a massive public record. She has written or spoken millions of words on what are by definition some of the most contentious issues of our time. She appears to have eaten enough rubber chicken to start her own KFC. And she has evidently schlepped to more sonorous law-related events than any person in their right mind would schlep to over the course of even the longest career. If this High Court thing doesn’t work out for her she should make a pitch to Red Bull to become its spokeswoman.

So it should come as no surprise that there were few surprises today in the completed questionnaire distributed to the Senate Judiciary Committee by the White House’s confirmation-hearing panel of hacks and tribunes. The first thing to say about the massive document dump is that Judge Sotomayor has an extensive mainstream record in the law that is marked by a few controversial moments of expressed thought. If this is enough to preclude her ascension to the Supreme Court as its third woman and first Latina then judges all over the country will be coming up with excuses to miss their next bar association invite.

We now know from the documents that Judge Sotomayor’s now famous “wise Latina” remark in 2005 was a variation on a consistent theme that she had expressed on several earlier occasions. Of all the times she returned to the theme of women as judges, her speech on March 17, 1994, appropriately enough in Puerto Rico, stands out to me as the most profound. Here’s what she wrote:

While recognizing the potential effect of experience on perceptions, Judge Miriam Cedarbaum (Martha Stewart’s trial judge, by the way) nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to and achieve a greater degree of fairness and integrity based on the reason of the law. From a person, who happens to be a woman, like Judge Cedarbaum, one can easily see the genesis of her conclusions… Yet although I agree with and attempt to work toward Judge Cedarbaum’s aspirations, I wonder whether achieving the goal is possible in all, or even most, cases, and I wonder whether by ignoring our differences as women, men, or even people of color, we do a disservice both to the law and society.

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Judge Sonia Sotomayor’s bid for Supreme Court confirmation got a major boost Tuesday from two unexpected sources. The 7th U.S. Circuit Court of Appeals—led by arch conservatives Richard Posner and Frank Easterbrook—declared in a 3-0 panel decision that the Second Amendment does not apply to state gun regulations, even in the wake of the big gun-rights victory at the Supreme Court last spring. It’s a strong legal position that is the same as the one Judge Sotomayor took when the same issue was presented to her and her 2nd U.S. Circuit Court of Appeals colleagues a few months back.

The 7th Circuit ruling gives nominee Sotomayor grand legal cover as she wends her way through the corridors of the Senate on her way to a confirmation hearing (in September, I bet, not in July). If she is pressed for her views on gun rights by conservative senators, or if the National Rifle Association tries to portray her as soft on gun-control, she can point to right-wing legal titans Posner and Easterbrook and say: “If I am wrong, then they are wrong, too” or perhaps, more appropriately, she can say: “I was right about the constitutional limits on last term’s big gun case and that’s been proven by the fact that Posner and Easterbrook followed me.”

The decision also makes it much more likely that the Supreme Court will have to accept another gun-rights case to decide whether the federal right is and ought to be incorporated down onto a state level. The Justices specifically refused to address that result in District of Columbia v. Heller (check out Footnote 23 if you don’t believe me) and declared that their existing precedent does not recognize such a right. The 2nd Circuit and now the 7th Circuit have refused to recognize such a right without express Supreme Court authority. The 9th Circuit, however, did recognize such a right. The Court now will have to broker that dispute before it gets worse (as more federal circuits chime in). And guess who is likely to be on the Court when that happens? Right. Justice Sotomayor!

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In the below interview with CBSNews.com, CBS News Legal Analyst Andrew Cohen argues that the idea of "judicial activism" and judges making policy from the bench "is a falsehood.”

"Any time a judge rules, it's an act," says Cohen. "The other myth is that judges don’t make policy choices…they do."

President Obama has been criticized for using the word "empathy" to describe what qualities he looks for in a nominee. Skeptics argued the word choice was a signal that his pick would be an “activist."

Cohen goes on to suggest that "the idea that no judge anywhere ever makes policy is just a myth, and hopefully is a myth that will be busted up as we go forward with this process."

Asked whether he envisions any "surprises" in Sotomayor's confirmation process, Cohen said, "I don't think there are many surprises left when you have someone who has been on the federal bench since 1992."

"All of the skeletons that were there to be had, have been had," he said.

Cohen believes the ruling which will draw the most attention during Sotomayor's confirmation hearings will be the New Haven firefighters' affirmative action case currently being argued at the Supreme Court. He believes that her decision to support the city will be overturned on appeal – and that opponents will then pounce.

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Having established many years ago my bona fides as a critic of the Bush Administration's ham-handed approach to the use of military tribunals against alleged terrorists, I have earned the right to declare now that the American Civil Liberties Union and its allies are wrong, dead wrong, to so quickly and ferociously denounce the Obama Administration's new military commission rules or the government's recommitment to using tribunals for terror suspects.

The administration's suggested changes will not make terror trials perfectly fair to the detainees — no rules of law anywhere for anyone achieve that goal. But from what little we now know about the details of the Obama Administration's revamped policies (tougher hearsay rules, banning the use of evidence obtained through torture, allowing the defendants more leeway in using defense attorneys), the new standards are significantly fairer to terror suspects than were the restrictive rules stubbornly implemented by the last regime.

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Below are my top 10 contenders for the Supreme Court vacancy created by Justice Souter's retirement. Take a look and then vote for your top prediction. Or let me know who I forgot in the comments.

Jennifer Granholm: Michigan's governor is bright, has a ton of experience in politics, and has the Harvard Law School connection. It’s hers to lose.


Christine O. Gregoire: Another female governor from Democratic state (Washington) but she’s not as experienced in the law as Granholm. Long, longshot.


Elena Kagan: Obama's Solicitor General may be too liberal, and might not have enough experience, to be considered seriously this time around. But after some seasoning before Court she might get to go behind the bench down the road.

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It is nice, bordering on quaint, to think that President Barack Obama would be able to successfully select a "regular person" (i.e. a non-lawyer) to replace Justice David H. Souter on the United States Supreme Court. It's certainly laudable that he would want to change the experiential makeup of the Court—all nine current Justices, including the soon-to-be-retired Justice Souter, came from federal appeals courts, which are almost as isolated from the rest of the world as is the Supreme Court itself.

But neither Oprah nor Dr. Phil nor Donald Trump nor that Scottish lady who sings nor Tiger Woods nor Bruce Springsteen nor any other non-lawyer will make it to the Court.

Here's why: the law in 2009 is far too complex for a lay person to jump into at the highest possible level. There are too many rules, too many standards, too much precedent, and too many exceptions. It would be like asking your high school French teacher to suddenly in a month be able to consistently comprehend, translate, and implement instructions in ancient Latin.

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