All Blog Posts from Courtwatch

What Walter Lippmann wrote nearly a century ago is even truer today. "It is clear that in a society where public opinion has become decisive," Lippmann wrote in Liberty And The News, "nothing that counts in the formation of it can really be a matter of indifference." So please allow me briefly to share with you some thoughts about the formation of my own opinions about the law, and my coverage of it, as I wind down a rollicking decade of work as the television and online legal analyst for my cherished CBS News.

This column will be my last for CBSNews.com and that means the end of CourtWatch, one of the longest-running, continuously-updated legal blogs ever (indeed, it was a "blog" before that word was even invented). During its run (some 650 full-length columns, some 600,000 words, roughly the length of the Old Testament), CourtWatch relayed in detail large and small the hundreds of chapters which made up the story of American law during the first decade of the 21st Century. If you can remember a legal story from the past ten years, chances are CourtWatch covered it, in whole or in part, as the lawyers say.

Through the years, the column was me and I was the column. Its failings and limitations were (and are) mine and mine alone. Its successes, however, were (and are and will continue to be) shared by my friends and colleagues and bosses at the network, who gave me an opportunity to witness and chronicle some of the biggest legal stories in American history; a presidential impeachment, an election recount, and a terror attack so deadly and unprecedented that its constitutional impact is still uncertain. To be sure, CourtWatch lived through interesting times. That I was able to stick around as long as I did was not just a miracle but a blessing.

There were hundreds of columns about the legal war on terrorism and the death penalty and the politicization of the law. There were columns about the need for judicial independence and about the often murky interaction between the branches of government. There were about a dozen columns over the years calling out politicians for cynically buying into the myth of "judicial activism." There were columns about signing statements and the Posse Comitatus Act. There was even a column or two about good ol' Ruth Jordan. But there was not a single column about Britney Spears' custody problems, unless you count this one and, really, you shouldn't.

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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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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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If you want to know what I really think about the injustice Texas is currently perpetuating upon the person of one Charles Dean Hood, at left, let me put it to you this way: even if Osama bin Laden himself were on trial for mass murder, with Hitler, Stalin and Timothy James McVeigh as his co-defendants, I still would think it was wrong to allow a capital trial where the judge and the prosecutor were or had been lovers.

The Texas Court of Criminal Appeals Wednesday whitewashed -- poof, like pixie dust!-- one of the worst examples of conflict-of-interest I have ever seen. The same court that recently defied the United States Supreme Court dismissed in a three-page, fact-less, analysis-free opinion an appeal by lawyers for a convicted murderer who, like any one of us accused (or convicted) of murder, has a right to a fair trial by unbiased and professional agents of the government.

I have little sympathy for Hood. It may be that jurors in his second trial convict him as quickly as jurors in his first trial did. He may be guilty beyond all doubt, let alone reasonable doubt. I don't know. And really, it doesn't matter.

His guilt or his innocence does not and should not excuse the solemn duties of prosecutor and judge to grant him a trial free of even the perception of gross impropriety or unfairness. All of us deserve that right, including those of us who are accused of the most heinous crimes. In fact, those people probably need it most.

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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.

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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The best exchange of the day occurred between Senator Kyl and the judge in talking about his concerns about her Wise Latina comment. Remember, he’s a Senator from Arizona with a large Hispanic population and I think he got about the best explanation we can hope to expect from her about why she said what she said.

It’s clear that the Republican members aren’t sold on the nominee’s explanation of her now famous “Wise Latina” comment—you can hear the skepticism in their voices and see it in her faces. But she has kept to her story—which is that she was encouraging young lawyers to be proud of their heritage but wasn’t telling them to put background above impartiality.

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She wouldn’t commit to lobbying her potential colleagues on the Court about cameras there, she refused to talk about whether she’ll recognize that the 2nd Amendment applies to the states, and she was very careful in answering questions about that takings case—I don’t prejudge cases, she said.


She’s touched upon almost all of the hot-button issues we expected, gun rights, abortion rights, the role of judges and empathy, her Wise Latina comments but mostly only scratching the surface. It’s clear Republicans on the Committee are going to return to those topics as the day wears on.

She hasn’t made any mistakes yet, hasn’t had the meltdown Sen. Graham talked about yesterday. She’s been very cautious and like her recent predecessors gave not a whiff of a hint of a scent of how she might rule in future abortion or gun rights cases.

So far she’s explained patiently her remarks about the role of empathy in decision making, on her Wise Latina comments and other controversial statements but when it comes to questions about how she might handle cases in the future she has been purposely vague and non-committal, just like nominees Roberts and Alito were.

Sotomayor Explains "Wise Latina" Comment

Live Video and Analysis of the hearing