Note: Throughout this series, items that are hyperlinked were in the Constitution as written in 1787 but have since been amended or superseded.

Article III of the Constitution of the United States established the Judicial Branch.  Here is Article III, Section I:

Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

The Constitutional ban on cutting a judge’s pay while in office was one safeguard of judicial independence.

Appears the once stalwart Justice Bhagwandas has a new bhagwan and that bhawan is none other than Zardari.

Remember Justice Bhagwandas had been working for the supreme court heading the judicial commission investigating oil and gas prices. The commission had found glaring faults in the mechanism and reported that the oil companies had been given a free hand to bilk consumers and made huge profits (one refinery alone saw it’s profits go up more than 4,331%) . In fact it was on the basis of that report that Chief Justice Iftikhar Muhammad Chaudhry defined it as  “A massive embezzlement of billions of rupees in price fixing mechanisms for petroleum products in local markets since 1999 by the beneficiaries, oil companies, OGRA as well as the Federal Government has been detected“.

(Of course nothing has been done to implement the recommendations of Bhagwandas Commission by the government.)

That an attempt to buy Bhagwandas was ‘on’ became apparent a few days back when Justice Bhagwandas himself revealed offers were being made to have him appointed Chairman, Federal Public Service Commission (FPSC). Though he said he had not rejected the offer, he did point out to those offering him the job that he was barred from accepting any position as per constitution (clause 2 of Article 207 of the Constitution placed a bar on retired Supreme Court and high court judges to accept an office of profit till the expiration of two years from their retirement, and Justice Bhagwandas would not complete that term until Dec 14, 2009, as he himself stated.)

Now imagine my surprise when I opened the paper today and saw this headline glaring at me on the front page:

Bhagwandas appointed FPSC chief

Yes, Bhagwandas — excuse me for not using the title ‘Justice’ — has accepted the job and as his first act visited the Presidency Mandir to get the ashirwat of Bhuwan Zardari.  Yes, we are still weeks away from Dec 14, 2009 so wonder what happened to that ‘clause 2 of Article 207 of the Constitution’?

Also note that the position of the chief of FPSC is today a neutered one, thanks to Bhagwan Zardari and Devi Gilani, so Bhagwandas will just be a figurehead, giving an aura of legitimacy to appointments that will not be based on merit but will be strictly ‘political promotions’.

I am just surprised Bhagwandas sold so cheaply.

Side note: Regarding that Bank of Punjab case, CJ Iftikhar is certainly appearing compromised and letting crooks off the hook. More on that soon….

This came to me in my email thought you might find it interesting if you haven’t seen it!

545 People

By Charlie Reese

Politicians are the only people in the world who create problems and then campaign against them.

Have you ever wondered, if both the Democrats and the Republicans are against deficits, WHY do we have deficits?

Have you ever wondered, if all the politicians are against inflation and high taxes, WHY do we have inflation and high taxes?

You and I don’t propose a federal budget. The president does.

You and I don’t have the Constitutional authority to vote on appropriations. The House of Representatives does.

You and I don’t write the tax code, Congress does.

You and I don’t set fiscal policy, Congress does.

You and I don’t control monetary policy, the Federal Reserve Bank does.

One hundred senators, 435 congressmen, one president, and nine Supreme Court justices equates to 545 human beings out of the 300 million are directly, legally, morally, and individually responsible for the domestic problems that plague this country.

I excluded the members of the Federal Reserve Board because that problem was created by the Congress. In 1913, Congress delegated its Constitutional duty to provide a sound currency to a federally chartered, but private, central bank.

I excluded all the special interests and lobbyists for a sound reason. They have no legal authority. They have no ability to coerce a senator, a congressman, or a president to do one cotton-picking thing. I don’t care if they offer a politician $1 million dollars in cash. The politician has the power to accept or reject it. No matter what the lobbyist promises, it is the legislator’s responsibility to determine how he votes.

Those 545 human beings spend much of their energy convincing you that what they did is not their fault. They cooperate in this common con regardless of party. What separates a politician from a normal human being is an excessive amount of gall. No normal human being would have the gall of a Speaker, who stood up and criticized the President for creating deficits. The president can only propose a budget. He cannot force the Congress to accept it.

The Constitution, which is the supreme law of the land, gives sole responsibility to the House of Representatives for originating and approving appropriations and taxes. Who is the speaker of the House? Nancy Pelosi. She is the leader of the majority party. She and fellow House members, not the president, can approve any budget they want. If the president vetoes it, they can pass it over his veto if they agree to.

It seems inconceivable to me that a nation of 300 million cannot replace 545 people who stand convicted — by present facts — of incompetence and irresponsibility. I can’t think of a single domestic problem that is not traceable directly to those 545 people. When you fully grasp the plain truth that 545 people exercise the power of the federal government, then it must follow that what exists is what they want to exist.

If the tax code is unfair, it’s because they want it unfair.

If the budget is in the red, it’s because they want it in the red.

If the Army & Marines are in IRAQ , it’s because they want them in IRAQ

If they do not receive social security but are on an elite retirement plan not available to the people, it’s because they want it that way.

There are no insoluble government problems.

Do not let these 545 people shift the blame to bureaucrats, whom they hire and whose jobs they can abolish; to lobbyists, whose gifts and advice they can reject; to regulators, to whom they give the power to regulate and from whom they can take this power. Above all, do not let them con you into the belief that there exists disembodied mystical forces like “the economy,” “inflation,” or “politics” that prevent them from doing what they take an oath to do.

Those 545 people, and they alone, are responsible.

They, and they alone, have the power.

They, and they alone, should be held accountable by the people who are their bosses.

Provided the voters have the gumption to manage their own employees.

We should vote all of them out of office and clean up their mess!

Charlie Reese is a former columnist of the Orlando Sentinel Newspaper.

What you do with this article now that you have read it………. Is up to you.

by Trina Love Abram

Have you ever taken a class, heard a sermon, gotten some wise advice, or attended an event that totally changed your outlook or your life? I have, and the latest life-changing event that I attended was the Blogalicious Weekend Conference here in Midtown Atlanta at the W Hotel.

A consortium of women bloggers crowded the second floor of the swank W Hotel in Midtown Atlanta this weekend. An array of races in varying hues bustled excitedly from room to room soaking up the meals of blogging knowledge that this conference served up on a sparkling silver platter.

The event founders cleverly call themselves the Three Justices, three savvy, smart, and gracious young women with a passion for blogging and social media and helping others fulfill their dreams of successful blogging. Justice Fergie, Justice Joesie, and Justice Ny provided a wealth of information using some of the best bloggers in the business as the conduit. It was phenomenal. The Justices are all attorneys,  mothers, and wives. Between the three of them they have seven kids, hence the special theme of the conference, which was blogging women of color. Most of the speakers were mothers who passionately split their time blogging, wearing their Supermom capes, and being wives.

I started blogging about three months ago. At The Leisure Living Blog, I write about my biggest passion, blooming prosperous souls mentally, physically, emotionally, and financially through Yoga, cognizant positivity, and spiritual inspiration. The Writing Land is a more personal blog about my non-fiction, creative, and technical writing journey, goals, setbacks, and accomplishments. With being such a novice blogger, the conference was like a huge gift box with tons of prizes stuffed inside. Every layer that I unwrapped contained an even better prize than the previous layer. The sessions that I enjoyed were: Upgrade You, Taking Your Blog to the Next Level, Style Online & The Multicultural Blogger, The Art of Small Business Blogging, and Secrets of a Successful Blog. Mama Niri, Cordiva from SheGeeks, Frugalista, and Xochitl Gonzalez from Always a Blogs Maid are some of the blogger panelist that I got to meet and enjoy at the conference.

With the assurance that you will attend the 2010 conference, which will be in sunny Miami, I want to share some tips that I learned at the conference:

1. Be passionate and authentic in your writing. Every speaker stressed the importance of being honest, transparent, and enjoying what you blog about.
2. Do your research. Check your facts.
3. Be consistent. Make a schedule and post regularly so that your readers know when to expect new information.
4. Share. Link to and refer readers to other blogs. There is enough fame and fortune on the information highway for us all.
5. Comment. Leave comments on other people’s blogs. You want comments on your blog, so reciprocate. Pay it forward.
6. Set goals for where you want your blog to go. Use your own personal definition of success to track your progress.
7. Use Social Networking Tools and Media, for example, Twitter and Facebook, widgets and plug-ins.
8. Write Right. Grammar and spelling errors can be distracting, which will detract from your intended meaning. Use correct grammar and spell check.
9. Develop your own brand and design that represents you, your blog, and subject matter.
10. Be creative. Don’t mimic others; instead, use others as examples, and build your own blogging landscape and presence.
11. Find your own voice. It’s more work to pretend, so just be you. Have your own sound.
12. Know who your audience is and know what they seek. Then speak to them when you write.
13. Keep abreast of the technology that is available to bloggers.

In addition to these tips, the speakers provided us with tons of technology and software suggestions to help us take our blogs to the next level, streamline the process of updating content in multiple places (single sourcing), and get site statistics.

We received an array of gifts from the conference sponsors. Even the table centerpieces at breakfast, brunch, and dinner were composed of free gift elements that the sponsors encouraged us to take. These women did a wonderful job.

Blogalicious was informative, but it was also inspiring. The dedication and determination of the experienced bloggers was impermeable. The speakers’ transparent stories about where they were then and where they are now lent validity and plausibility to the thoughts and dreams I’d had about blogging and being an Infoprenuer. They all had the attitude that “If I can do it, You can too…and here’s what you need to do to get started.” Inspiring! In her Keynote speech, Karen Walrond encouraged us to “make our different beautiful.” She chronicled her blogging experience and gave us tips that’ll keep us from stumbling on our own journey. Author Denene Millner’s took us through her personal journey, reminding us that divine intervention is present at every turn. 

Already I’ve updated the design on my blog site, created a brand, set a posting schedule, and started a Twitter account. I was so pumped when I got home, that what I could immediately do, I did.

I really enjoyed meeting the other bloggers, networking, making connections, and hearing success stories. I didn’t meet not one person that wasn’t eager to learn or eager to teach. It was spectacular. We swapped knowledge, stories, and smiles. And that’s what it is all about, exchanging information and bringing along others as you climb. I want to thank the Justices for the best conference that I’ve attended in the last couple of years. The entire conference was deftly structured, organized, professional, and fun. I welcomed the contagious kinetic energy coursing in every room. The Food was delicious. The staff was gracious. The information was priceless. The inspiration is long lasting. Keep your online ears to the screen for information about Blogalicious 2010 in sunny Miami, Florida. You don’t want to miss it.

Resources:

Blogalicious Weekend 2009 Official Web site

YouTube Videos from Anandaleeke

The Three Justices’ site, Mama Law

Full listing of  Agenda, Bloggers and their We and Sessions

Full listing of Sponsors

© 2009 KaTrina Love Abram

On October 4, C-Span began airing a series of interviews with Supreme Court Justices.  All of the Justices except Sonia Sotomayor gave interviews (she was not confirmed when the filming took place).  In the interviews, the Justices talk about the history, procedure and inner workings of the Court.  You can see excerpts from the interviews on YouTube.

Today’s Fulton County Daily Report notes that Justice David Nahmias has announced his intention to recuse from consideration of any case in which King & Spalding appears as counsel for a party unless the parties agree otherwise.  Nahmias’ wife is an equity party at King & Spalding, and is paid based on the a share of the profits of the firm instead of being paid a salary.  As a result, there is at least an appearance that she would stand to gain from success of the firm in appellate courts.

Nahmias’ order came in response to a motion for him to recuse filed in Friends of the Chattahoochee v. Longleaf Energy Associates.  (The Court denied certiorari in that case without Nahmias’ participation on September 28, 2009.)  Although he noted that filing an order announcing a standard of recusal is unusual, he felt it was best to clarify the point, which had been raised in several cases.  The order walks through all of the relevant statutory and case law related to recusal, concluding that, consistent with the Canons of Judicial Conduct, “judges still must disqualify themselves ‘in any proceeding in which their impartiality might reasonably be questioned.’”  He found that under guidance from past cases at the Georgia Supreme Court, his recusal is required in any case where his wife’s firm appears on behalf of a party.

Nahmias closed by stating, “Nevertheless, it is imperative that the public have faith and trust in the impartiality of the justice system, Stephens, 249 Ga. at 702, and any ‘appearance of impropriety’ that may exist is enhanced where the relative at issue is the judge’s spouse. Therefore, I will disqualify myself from any case in which King & Spalding lawyers are actively representing a party before this Court, including this case.”

A copy of Nahmias’ order is available on the site.

posted by GeoT

From:

Justices of the Supreme Court 2009-10 term

The U.S. Supreme Court reconvenes for its 2009-10 term on Oct. 5, with most of the attention going to the court’s freshest face, newly confirmed Justice Sonia Sotomayor. But Sotomayor and her eight colleagues won’t have a lot of time for orientation: the court will start immediately on a docket of controversial cases that will call on Justices to consider new facets of the Establishment Clause, gun ownership and prison terms for minors, among other issues. In total, the Justices have already agreed to hear 55 cases in the new term. Here are five to keep an eye on.

* Salazar v. Buono
At issue: Whether the government can permit the display of a crucifix on public land as per the Establishment Clause.

* Maryland v. Shatzer
At issue: The scope of the rights of police suspects, as given in the court’s landmark 1966 decision, Miranda v. Arizona.

*Graham v. Florida / Sullivan v. Florida
At issue: Whether life imprisonment for juveniles on nonhomicide charges constitutes cruel and unusual punishment.

*National Rifle Association v. Chicago / McDonald v. Chicago
At issue: Second Amendment rights to gun ownership.

*American Needle v. National Football League
At issue: Whether sporting leagues should be exempt from antitrust regulations.

Full Case Details:
Here

Related Information: (click image for website)

Related Stories: “Does the Supreme Court Still Matter?”

On Wednesday, lawyers for the conservative group Citizens United, argued before the court that the McCain/Feingold ban on corporations and groups use of their money to express their views (they did a piece  against Hillary Clinton during last years campaign) was unconstitutional.  The hearing, which re-argued the case, and brought other similar cases into the mix, had the majority of justices subject the United States Solicitor General Elena Kagen to tough questions on ban. But the tone of the questions indicated that the justices were interested in what limits, if  at all, corporations and groups should have…..The fundamental question of if they could express their views seems to be settled already by the basis of the justices line of questions, which would  knock the ban out of the McCain/Feingold bill.

When the bill came out, progressives cheered, but I felt that the basic premise that having money should not disqualify one, or groups, from being able to say their piece……..I guess the Supreme Court is gonna agree with that….And though I don’t have a lot of money…I’m fine with that……..What’s right…is right…..

David E. Nahmias will be sworn in as a Justice of the Supreme Court of Georgia by Governor Sonny Perdue in the House of Representatives chamber at 2:00 pm on Thursday, September 3.  Nahmias resigned from his post as U.S. Attorney for the Northern District of Georgia effective August 23.

The U.S. Supreme Court has been in the news lately with the nomination and confirmation of Associate Justice Sonia Sotomayor.  Ever wonder about the justices, the dissents and opinions, or the history of our nation’s highest court?  Well, here are few places to look.

Go directly to the source.

The Supreme Court of the United States – http://www.supremecourtus.gov/

Here you’ll learn about the justices, decisions, visiting the court, and much more.

Everything you ever wanted to know about the court is here.

The Supreme Court Historical Society – http://www.supremecourthistory.org/index.htm

Founded by Chief Justice Warren E. Burger, “the society is dedicated to collecting and preserving the history of the court.”  From timelines to quizzes, you’ll have fun learning about the court.

Take a tour.

Oyez U.S. Supreme Court Media – http://www.oyez.org/

This site is “devoted to the Supreme Court of the United States and its work.”  While there is a wealth of information from justices to decisions, take a tour.  You’ll see the chambers, the courtroom, the interior, the exterior, and even the view. 

Interested in a decision or dissent?

Cornell University Law School Supreme Court Collection – http://straylight.law.cornell.edu/supct/

Read about historic decisions as well as the more recent ones.  Search by topic, author, or keyword.  Get the whole picture through the opinions and dissents.

 These are just a few websites to visit to learn more about the U.S. Supreme Court.  Enjoy!

On Thursday, August 13, 2009, Governor Sonny Perdue appointed current U.S. Attorney David Nahmias to the Supreme Court of Georgia, succeeding Justice Leah Ward Sears. Nahmias will have the remainder of the Court’s traditional August recess to prepare his chambers.

The newly-appointed Nahmias grew up in Atlanta, graduated summa cum laude from Duke University, then attended Harvard Law School, where he graduated magna cum laude and was an editor of  the Harvard Law Review.  He clerked for Laurence Silberman of the U.S. Circuit Court for the District of Columbia and then for U.S. Supreme Court Justice Antonin Scalia.

After practicing with the law firm of Hogan & Hartson, Nahmias served in a variety of positions with the U.S. Attorney’s Office in Atlanta before returning to Washington to serve in the Criminal Division of the U.S. Department of Justice.  President Bush nominated Justice Nahmias to serve as the U.S. Attorney for the Northern District of Georgia on December 1, 2004, a position he held until August 13, 2009.

Nahmias is married to Catherine M. O’Neil, a partner at King & Spalding LLP in Atlanta.  They have two sons.

This morning, Judge Sonia Sotomayor took the oath of office  to become the Supreme Court’s first Hispanic justice. As the 111th justice, Sotomayor is also the third woman to serve on the nation’s highest court  in its 220-year history.

She succeeds retiring Justice David Souter. (Video of President Barack Obama discussing his nominee’s experience). Joining her at the swearing-in ceremony were her brother and mother. Initially, Chief Justice John G. Roberts, Jr., administered the Constitutional Oath in a private ceremony before he administered the Judicial Oath before a small gathering. This was the first time a Supreme Court swearing-in ceremony was televised live.

The Senate confirmed her Thursday in a 68-31 vote. The president said, with the vote, the Senate “has affirmed that Judge Sotomayor has the intellect, the temperament, the history, the integrity and the independence of mind to ably serve on our nation’s highest court.”

“Like so many other aspects of this nation, I’m filled with pride in this achievement and great confidence that Judge Sotomayor will make an outstanding Supreme Court justice. This is a wonderful day for Judge Sotomayor and her family, but I also think it’s a wonderful day for America,” Obama said Thursday.

Her supporters, including members of LatinoJustice PRLDEF, celebrated the confirmation.

“A formal investiture ceremony will take place on Tuesday, September 8, at 2 p.m. at a special sitting of the Court in the Courtroom,” according to a press release posted on the Supreme Court Web site.

I listened throughout the hearings and appreciated her temperament and reasoning as she discussed her judicial philosophy and answered questions about the role ethnicity/gender played in her decisions. Inscribed above the entrance to the high court is “Equal justice under law.”  It appears that Sotomayor’s confirmation broadens the opportunities for Americans from diverse backgrounds to uphold the ideals of the country and to keep the promise of the court.

There will be a reception in her honor at the White House on Wednesday.

The United States Senate today voted to confirm Judge Sonia Sotomayor as a Justice of the Supreme Court.  Click on the link to find out how your senators voted. 

I guess now we’ll get a chance to see the real Justice Sotomayor.  I highly doubt we’ll get the restrained jurisprudence she preached in the confirmation hearings.  We’ll now see which precedents she truly respects.

This is just silly.

The Senate debate over Supreme Court nominee Sonia Sotomayor turned bitter Wednesday, after Democrats warned the GOP it would pay a steep price for opposing the judge who would be the first Hispanic justice, and a top Republican charged they were playing destructive racial politics.

Would the Democrats making that charge be the same Democrats that opposed the nomination of the Hispanic Miguel Estrada to the U.S. Court of Appeals for the District of Columbia Circuit by the use of a filibuster (they blocked the Senate from even voting on the nomination)? 

Because, after all, he was Hispanic…  In fact, check out this internal memorandum to  Democratic Senate Minority Whip Dick Durbin.  And I quote:

…yesterday’s meeting focused on identifying the most cfontroversial and/or vulnerable judicial nominees, and a strategy for targeting them. . . . They also identified Miguel Estrada (D.C. Circuit) as especially dangerous, because he has a minimal paper trail, he is Latino, and the [Bush] White House seems to be grooming him for a Supreme Court appointment.  They want to hold Estrada off as long as possible.

Somebody was mentioning racism…who was it?  Oh yes…  Those picking a speck out of someone else’s eye ought to look first at the plank in their own… 

Republicans would love a Hispanic on the U.S. Supreme Court.  His name is Miguel Estrada.  The assertion that Republicans oppose Hispanics as such is just plain dishonest.  Any Democrat playing that race card exhibits contempt for the truth and for the Americans that elected them.

Professor Matthew J. Franck gives us an excellent history of the state of abortion law in the United States in the context of the Judge Sotomayor hearings.  The sad fact is, many Americans do not know that “Supreme Court jurisprudence has manufactured a right to unfettered abortion right up to the time of the child’s birth.”  Professor Franck asks and answers, “How did Americans become so confused on this issue and how did the Supreme Court end up where it has?”  I highly recommend reading his full article, but I’ll provide some highlights here. 

He quotes the confirmation hearing Q&A:

Sen. Coburn: You’ve been asked a lot of questions about abortion. And you’ve said that Roe v. Wade is settled law. Where are we today? What is the settled law in America about abortion?

Judge Sotomayor: I can speak to what the court has said in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade, that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman’s constitutional right. That’s my understanding of what the state of the law is.

Sen. Coburn: So let me give you a couple of cases. Let’s say I’m 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum, the lower part of the back, on my baby, and I feel like I just can’t handle a child with that. Would it be legal in this country to terminate that child’s life?

Judge Sotomayor: I can’t answer that question in the abstract, because I would have to look at what the state of the state’s law was on that question and what the state said with respect to that issue. I can say that the question of the number of weeks that a woman is pregnant has been—that approach to looking at a woman’s act has—was changed by Casey. The question is, is the state regulation regulating what a woman does an undue burden? And so I can’t answer your hypothetical, because I can’t look at it as an abstract without knowing what state laws exist on this issue or not. . . .

Professor Franck then provides the following analysis:

The judge’s answer to the senator’s question was miles wide of the mark, and indicated either that she does not know the truth about the constitutional law of abortion in our country, or that she is willing—for whatever reason—to mischaracterize the matter before a national audience. Senator Coburn had an opening here that cried out for exploitation, but he passed it by for the moment.

The next day, however, he returned to this subject, taking Judge Sotomayor through another brief exchange and pointing out to her that “the truth is, ever since January 22nd, 1973 [the day Roe was decided], you can have an abortion for any reason you want in this country,” and that the stage of one’s pregnancy at the time does not matter at all. The senator was perhaps too kind to the judge, when he might have leaned in and said with quiet intensity, “Why don’t you know this?”

But the sad truth is that too few Americans know this, even those with legal credentials.

Professor Franck then provides us with a thorough history of the Supreme Court’s abortion jurisprudence.  Professor Franck concludes from that history that:

the Supreme Court as presently constituted will not countenance an actual legislative ban on a whole class of abortions, defined either by their timing or by the reasons women give for wanting them. Many pro-life activists are in the habit of referring to “abortion on demand,” but may be familiar only with the broadest legal outlines of the phenomenon. Close students of the Court’s rulings over the last 36 years—and many of those close students are also in the pro-life ranks—can assure those activists that the phrase is perfectly accurate.

Professor Franck then concludes with respect to the nomination hearings:

Which brings us back to Judge Sotomayor. Judging from her record on the board of the Puerto Rican Legal Defense and Education Fund, she is every inch a pro-choice advocate, and she has been a federal judge for 17 years. She has no excuse not to know what Sen. Coburn was getting at. She has no excuse not knowing that abortion on demand has been the law of the land since January 22, 1973. She has even less excuse covering that up in a nationally broadcast congressional hearing, if she does know it.

Courtesy of The Believer’s Guide to Legal Issues:

The fact that she got such a laugh when she said “judges don’t make law” reveals the state of affairs in our judiciary (not to mention among Duke University law students, which are not unlike the majority of other law students across the nation).  You can expect more undemocratic law-making to come when she is confirmed.

Professor Matthew Franck provides a nice counter-point to Professor Seidman (as quoted in my last post):

Mike,

For my part I find the president’s account of the role of “empathy” in judging to be alarming, and I would welcome Judge Sotomayor’s repudiation of his arguments—if I believed her. Frankly, I don’t.

I think I know what you mean by the “official version” of what judges do. I agree with you that “applying law to facts” is too simplistic to capture the nuances of what Felix Frankfurter called “judicial judgment.” But if it’s not where I would stop, it’s not a bad place to start. And if you mean to say that the political convictions of judges are either a) inevitably a part of their legal judgments or b) desirable elements of the same, then I disagree. Certainly their political convictions are not desirable elements in judicial judgment, and to the extent that they inevitably creep in, they should be minimized as close to the vanishing point as possible by every conscious effort a judge can muster.

Judge Sotomayor, in the speeches from which she now flees unconvincingly—sorry, I mean which she now assures us were misunderstood—takes the view that gender and ethnicity influence the convictions of the judge, which in turn influence legal outcomes. Like the president, she celebrated this rather than worrying about it. Now she sings a different tune.

Is she a cynic? Perhaps so. Bill Bennett said to me on his radio show this morning that at least we can take comfort from the fact that views like the president’s and Judge Sotomayor’s (before this week) are understood to be unacceptable to the American people when a bright light is shone upon them. I think that’s right.

I would agree with Professor Franck that the Court’s political judgments and other characteristics (race, gender, economic theories, etc.) must be (and can be) minimized and such issues left to the legislature.  The problem comes when a truly indeterminate case arises.  In those rare cases, the Court must make a judgment where the legislature has not yet made a judgment (this is the point that Judge Sotomayor pretends does not exist, and Professor Seidman castigates her for that).  Hopefully, the Court’s judgment in those instances can be overruled by the legislature so that democracy will prevail over the judge’s opinions (which is why it is so dangerous for the Court to willfully interject its opinions as constitutional law, which cannot practically be undone).  One of the problems is that Courts are all too willing to find an “indeterminate” case where a principled answer does exist.  Additionally, where the Court must make a decision in an indeterminate case, I would hope that the judges have something more than “I’m a wise latina woman” on which to base their decision.  It is at this point that I would probably part ways with just about every law professor in the nation: I believe that the truly indeterminate cases are rare and can nevertheless be decided by objective principles rather than mere willful power. 

Georgetown Law professor Louis Michael Seidman sums up the Sotomayor testimony perfectly during this online debate:

Speaking only for myself (I guess that’s obvious), I was completely disgusted by Judge Sotomayor’s testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments. To claim otherwise—to claim that fidelity to uncontested legal principles dictates results—is to claim that whenever Justices disagree among themselves, someone is either a fool or acting in bad faith. What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today? That judges and justices must live these lies throughout their professional carers?

Perhaps Justice Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves.

Bravo, Professor Seidman.  His remarks adequately express why I was so frustrated listening to Judge Sotomayor pretend that all she would do is “apply the law to the facts” without a hint of ideological bias or underlying philosophical presupposition.  It was like a big “emperor’s new clothes” charade–everyone in the room knew it wasn’t true, but no one would say it. 

I expect that I disagree with Professor Seidman on a great deal of legal and political philosophy, but he is right on this–even first year law students know that judges bring philosophical “baggage” with them to their cases.  And so they should.  I may disagree with Professor Seidman on what is the appropriate “baggage” to bring, but we both agree that for Judge Sotomayor to pretend that she has none is nothing less than perjury. 

The ultimate example of Sotomayor’s chicanery in these hearings is that she keeps pointing to her “record.”  Senator Schumer has chimed in by insisting that she hasn’t “made” any law in her entire record. 

Her “record” of case decisions thus far, of course, is the result of her being subject to the review of a higher court (and also of her aspirations to become a Supreme Court justice). When she is in charge as a Supreme Court justice, she will get to set the course with no oversight and no higher position to which she can aspire. That’s when we’ll see her true philosophy put into action. And that is why she’s trying to ignore her speeches and point to her “judicial record”, which has little bearing on what she’ll do when she’s cut loose from the shackles of a higher court and future confirmation hearings. Her speeches reveal the philosophy she will actually employ.

That philosophy is of the “critical legal studies” school of thought, which ultimately claims that all judicial decisions are biased and cannot help but be so, and that judges therefore should make the law whatever they think is “just” (though in my opinion they have no viable framework for determining what justice is, so they just do what they want). Judge Sotomayor is unlikely to show much restraint as a Supreme Court justice, notwithstanding her alleged “record” as a subordinate judge.

When someone has to say one thing in one context where he/she is bound by rules and oversight, and then that person says something different in a context where he/she is free to say whatever he/she wants, which do we think is more honest?

I’ve been watching the Senate confirmation hearing for Obama’s nominee to the U.S. Supreme Court, Sonia Sotomayor.  I’d like to point something out quickly.

Democrats typically ask about a judge’s “respect for precedent” as code-speak for “do you respect Roe v. Wade and will you follow it?”  Democrats don’t like to ask the latter question because it reveals their fierce dedication to abortion.  However, during the Reagan administration, Democrats defeated the nomination of Judge Robert Bork, citing, among other things, that Judge Bork (allegedly) would have decided Brown v. Board of Education (the case that integrated public schools and overturned the “separate but equal doctrine”) differently than it was decided. 

Here’s the rub: Brown v. Board of Education was a departure from precedent.  Further, there was no precedent dictating the result in Roe v. Wade.  Democrats like departure from precedent when they agree with it.  They don’t like departure from “their” precedents.  (I’ll admit that Republicans do the exact same thing, though they typically argue that they want judges to depart from bad precedent and return to an original understanding of the Constitution, not create new and unpredictable law like the liberal justices do.) 

In the hearing today, Judge Sotomayor made the disingenuous statement when questioned about her opinion about one case, “that’s the settled law so I’d be bound to follow it [as a Supreme Court justice].”  That simply is not true.  As a Supreme Court justice, there is no enforceable obligation to stare decisis.  The Court can plainly reject past cases, as it did in Brown v. Board of Education, whenever it wants to.  When she is made a Supreme Court justice, she will do whatever she wants to do, and she’ll decide to overturn any precedent she doesn’t agree with (and try to get four other justices to do the same thing).  For her to claim that she will blindly follow precedent as a Supreme Court justice flies in the face of the entire history of the United States Supreme Court. 

Of course, she will follow precedent when it suits her, and Roe v. Wade is certainly one of those precedents.  She is also sure to use the “empathy” that President Obama said he expects, whatever “empathy” even means.

Confirmations for Sotomayor are finally coming under way. Sonia Sotomayor, an appeals judge from New York, was nominated by President in May as the replacement for Justice Souter who announced his plans to retire. Since then a swirling controversy has surrounded Sotomayor, not only because of her race (self identified Latina) but also her gender. Sotomayor would be the first Latino judge on the bench and one of only two women on the bench if she is confirmed and it is her remarks about her race that have sparked the controversy.

In 2001, Sotomayor remarked that she would hope a wise Latina could bring more to the bench than a white male without the same experiences she has had. These remarks are specifically problematic to Senate Republicans who announced that they will “question her ability to be impartial, based on previous statements she has made about her background”.

Currently, 7 members of the G.O.P. and 12 Democrats make up the Senate Judiciary Committee. While Democrats have said the expect confirmation with ease, as a nominee, Sotomayor is facing the larger opposition from the minor party than any recent nominee. The reason for this opposition does stand on her “bias”, but the American public doesn’t seem to mind.

Sotomayor does represent a completely different viewpoint. She believes her experiences, in her race and gender make her a better judge. This ideology is completely different from the only other minority Justice Thomas. Clarence Thomas has done his best to completely and utterly separate his race and experiences from his court rulings.

I personally hope for her quick confirmation. She has an excellent record and the court needs some new perspective and a strong fighter for the “liberal side”. As for her ability to remain impartial, Sotomayor has recused herself from cases brought to her courtroom more than any justice currently sitting on the bench!