Monthly Archives: May 2009

Justice Sonia Sotomayor Fits the Obama Mold

By Marc Seltzer; originally published on May 29, 2009 at

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The nomination of Justice Sonia Sotomayor to the U.S. Supreme Court fits perfectly with President Obama’s vision for good government: independent intellect, moderate politics, and pragmatism.

Sotomayor is a first generation Puerto-Rican American of humble upbringing. She distinguished herself academically, graduating summa cum laude from Princeton and editing the Yale Law Journal. Like Mr. Obama she proved herself and opportunity followed academic excellence.

Sotomayor has acknowledged that being Hispanic and a woman may be qualifications, or at least qualities, important to her professional career. “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” she said in a speech. This differs from President Obama who hesitated to make distinctions part of his political language and for whom “we” most often meant middle-class Americans.

Republicans have attacked Sotomayor’s remarks as identity politics and raised fears of a judicial philosophy of preferences. But is this just grasping for straws?

First, simply, is the question of what she meant. Did she mean that it was about time for women and Hispanics to be better represented in government service? After all, there have been 110 Supreme Court Justices since the nation’s founding, and only two have been women. None have been Hispanic except Justice Benjamin Cordozo, of European Jewish ancestry, who may have had Portuguese bloodlines a few centuries back. Arguing that Cordozo keeps Sotomayor from being recognized as potentially the first Hispanic on the Court is nonsense.

Or did Justice Sotomayor mean that experience in life – adversity, discrimination, and disadvantage – helped her to build character and taught her about life in a way that wealth and social status might not have?

Conservatives may worry that she would be an advocate for women and for minorities on the court, emphasizing sympathy over the legal rules. This treads into especially difficult waters. Politically, liberals have often taken up the causes of women’s and minority rights. In the legal context, at least, conservatives have opposed affirmative action, or race-conscious government actions as reverse discrimination.

Commentators refer to decisions rendered by Ms. Sotomayor as technical and narrow rather than ideological and sweeping. In one case she emphasized how “embarrassing and humiliating” the school strip searches can be to teenage girls. Is this comment a sign of prejudice and activism? Because Sotomayor’s decisions are mainstream and are specific responses to facts rather than sweeping pronouncements of political theory, it is a stretch to find in them judicial activism or bias.

What is easier to find is pragmatism. Justice Sotomayor is known for concentrating on the facts of each case and for diligence and care in crafting her decisions.

A Judicial Review: Justice Richard Posner

By Marc Seltzer; originally published on May 20, 2009 at

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A potential candidate for the U.S. Supreme Court?

Justice Richard Posner of the U.S. Court of Appeals for the 7th Circuit is a giant in the field of legal theory. In association with others at the University of Chicago Law School, Posner is a chief architect of a movement called “law and economics”: efforts to bring free-market economic thinking into legal theory. Consequently Posner is known as a conservative for his economic principles. However, he does not take broad ideological positions. For example, he supported the government’s recent efforts to stimulate the economy using public funds, but he opposed the use of tax rebates because he concluded that the public would save this money rather than spend it. Instead, he endorsed spending on roads, bridges and other infrastructure, generally in line with Democratic Party positions.

Justice Posner is also a unique Supreme Court candidate because he has expressed so many opinions outside of the courtroom. He has written 40 books and hundreds of articles. He also maintains an active blog with colleague Gary Becker and is considered the most prolific justice in U.S. history. He has expressed support for environmental regulation, abortion rights and other principles that make him appear socially liberal. On the other hand he has supported a powerful government in the context of national security, defending the use of torture and limiting press freedoms in a way that is not popular with critics of the Bush administration.

Can such a person be nominated to the U.S. Supreme Court?

In the past, this would not have been a problem. However, since the 1980s, every Supreme Court nomination has become a power struggle and performance where the political parties attack the other side and try to score points while painting the opposition as extreme. The nomination of Posner would be difficult because it would appeal to centrists from both parties, but it would also be a sitting duck for attack by ideologues from both parties.

The question for President Obama is whether he believes Posner would make a great justice. Obama knows Posner from their time together on the faculty at the University of Chicago Law School. They share a pragmatic view of politics and policy. Is the President willing to apply his political capital in support of a candidate who will draw fire from his own party? Is Obama comfortable appointing a justice with such an independent mind that his judicial decisionmaking is difficult to predict?

A Judicial Review: Professor Cass Sunstein

By Marc Seltzer; originally published on May 13, 2009 at

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Harvard Professor Cass Sunstein is 54, the same age as Justices Kim Wardlaw and Sonia Sotomayor, profiled here in recent weeks. A longtime Professor at the University of Chicago Law School, where he was a colleague of President Barack Obama, Sunstein is one of the country’s leading legal scholars. He has published widely with particular interest and expertise in environmental issues, information technology, and behavioral economics.

Sunstein is referred to as a liberal, but his political philosophy is not easy to categorize. He would appeal to some conservatives because of his belief that judges should carefully limit their focus to the case at hand, leaving the larger legal rulemaking to legislators. Mr. Sunstein supported the nomination of Bush appointee John Roberts Jr. to the Supreme Court. Roberts had articulated this philosophy of judicial minimalism in his Senate confirmation hearing.

However, when Justice Samuel Alito was nominated by President George W. Bush, Mr. Sunstein wrote a detailed analysis of Alito’s conservative rulings arguing that Alito was a “conservative’s conservative.” The op-ed did not overtly oppose Mr. Alito’s nomination, but it sought to make plain theesssential conservatism of Alito’s positions.

This type of record is something that would not be available for those considering Professor Cass as a nominee to the high court. He has not served as a judge and has no record of judicial decision-making to dissect.

Professor Sunstein left the University of Chicago to join the Harvard Law faculty this academic term, and in January was nominated by the Obama administration to be head of the Office of Information Technology and Regulatory Affairs.

He is extremely creative and forward-thinking. His most recent book Nudge: Improving Decisions about Health, Wealth, and Happiness, which he co-authored with Richard H. Thaler, discusses a framework for moving society’s decisions in the right direction.

Responding to the question, “How does anyone determine what’s “good”? How do we determine what’s good for the environment?” in a recent interview, Sunstein explained,

“For most nudges, we’re thinking of people’s good by reference to their own judgments and evaluations. We’re not thinking that the government should make up its own decision about what’s good for people. The environment can fit within that framework to a substantial extent, but it has a wrinkle, which is that often when we buy certain goods or use certain energy or drive certain cars.…we inflict harm on others, so our own judgments about our own welfare aren’t complete. We want nudges that do help people who are being nudged but also help people who are harmed by those who are not taking adequate account of the risks they are imposing on other people.”

Sunstein’s pragmatism also seems a good fit for President Obama, demonstrated in the following quote:

“I think on a lot of problems, including environmental problems, we can make progress without getting stuck on issues that divide people. The price system can be used in a way that fits with people’s moral obligations. If you’re inflicting harms on other people but the costs of your actions (become) higher, then you’re probably going to inflict lower harms on other people. One of the great tasks of the next decade is to ensure that when people are creating risks though their daily activities, that they bear the cost.

I believe also that one big motivator of behavior is economic and another big motivator is moral, and for certain environmental activities we should appeal to people’s conscience. A lot of people are buying hybrids not because they save money, which they might, but because it’s the right thing to do. I just bought a hybrid myself. The reason I bought it was moral.”

Fundamental to Sunstein’s public policy theory is the idea that more information makes people more able to get the right outcome. If Sunstein is nominated to the Court, or if he is confirmed in the position at the Office of Information Technology and Regulatory Affairs, we should expect to receive an education.

Immigration Solutions

By Marc Seltzer; originally published May 12, 2009, at

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Last month, after President Obama announced the beginning of a discussion on immigration reform, I wrote a blog discussing the fundamental political conflict at the heart of the matter:  Legalization for twelve million or so immigrants, whose status is currently illegal.

The two solutions offered by opposing sides are:  (1) strict enforcement of current law, leading to deportation of the illegal work force and those family members without legal residence; or (2) legal status and a path to citizenship with a fine for breaking the law.

The first option is not realistic because of the human costs, economic disruption and political beliefs of the majority of Americans and their representatives.  Those who see this as a black and white issue, where illegal means “no rights” are missing the historic context of a nation built on immigrants and hard work, not entitlement and status.  It’s not that illegal immigration is right, it’s that this solution is not right.  The nation may or may not be capable of policing its borders, but it is not capable of ten million deportations.

The second option is essentially the same “Amnesty” program that was implemented under President Ronald Reagan, with the addition of a potentially significant fine to punish and discourage the immigration law violations.

There has not been much discussion of the fine or potential restrictions of this type of legalization.  This may be where there is some room for compromise.  There is no reason that the fine could not be substantial, that the path toward citizenship could not be long, or that some immigrants could not be put in legal worker programs, where they would not be entitled to a path to citizenship without further application along with other non-resident applicants.

A stricter, more “punishing,” legalization program would serve to discourage illegal immigration in the future, especially if legal quotas for immigration kept up with the labor needs of U.S. employers and employers who broke the law were sanctioned.

If the second option (legalization) can be achieved politically, then the 12 million people who can take advantage of the program will come out from the shadows of the law and establish legal identities in the American system.  If this option cannot be achieved politically, the status quo may continue for another period.  This option has many negative consequences.   For the illegal residents, they suffer exploitation and lack of legal participation in the society in which they live.  Society loses their number in the census, in some tax collection and public allocation of resources.  Unfair competition with the legal workforce is also a problem.

So far, anti-legalization forces have not shown an interest in creative compromise.  It’s time they did so.  The failure to enact legal reform does not create a better real-world solution.  Helping to create an immigration program for the future that is realistic and firm is the best way to get the legal framework in line with an enforceable legal reality.

A Judicial Review: Justice Sonia Sotomayor

By Marc Seltzer; originally published on May 11, 2009 at
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President Barack Obama will soon name a Supreme Court nominee to fill the shoes of Justice David Souter.

Mr. Obama has stirred the pot in explaining what he is looking for in a justice, saying, “I will seek somebody with a sharp and independent mind, and a record of excellence and integrity. . . I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a case book, it is also about how our laws affect the daily realities of people’s lives, whether they can make a living, and care for their families, whether they feel safe in their homes, and welcome in their own nation. I view that quality of empathy, of understanding and identifying with peoples hopes and struggles as an essential ingredient for arriving at just decisions and outcomes.”

This is more a working man’s justice than an ivory tower intellectualism. Critics have already attacked Mr. Obama’s statement as though it sacrifices legal principles in favor of emotional sympathy. This is hardly likely, given Mr. Obama’s own background in education, role as a constitutional law professor and keen intellect, but it remains to be seen whether the issue will play into the selection of a candidate or the argument at hearings on confirmation. The overwhelming Democratic majority in the Senate may finally reduce the hearings to the pro-forma confirmation of years gone by.

Last week I profiled Justice Kim McLane Wardlaw of the 9th Circuit Court of Appeals. Another leading contender for the position is Justice of the 2nd Circuit Court of Appeals, Sonia Sotomayor. Sotomayor was nominated by President George H.W. Bush to the federal bench and promoted by President Clinton to the federal court of appeals. She received bi-partisan support in both Senate confirmation votes, however, her nomination for the appellate position was stalled in the Senate committee by Republican Senators. She was seen as too liberal for objecting Senators who saw the nomination to the 2nd Circuit as preparation for a Supreme Court appointment.

Justice Sotomayor is considered a centrist although her opponents will likely paint her as a liberal in any attempt to derail her nomination. She is fifty-four years old and was born in New York to Puerto Rican immigrant parents. She would be the first Latina Supreme Court Justice if confirmed.

In 1994 she was the trial judge in the Major League Baseball strike case and her decision against the League and its effort to hire replacements and impose a new collective bargaining agreement effectively ended the strike.

The work of judges becomes a political football game when it comes time for nominations. Already Justice Sotomayor is being criticized in the press without much consideration for her judicial ability. More to the point are a list of evaluations of Justice Sotomayor by lawyers who interacted with her in court, provided by Loyola Law Professor Rob Kar:

“She is a brilliant judge and has been mentioned as a potential justice on the Supreme Court.”

“She’s of Supreme Court caliber. She’s very smart.”

“She’s very smart and well-educated, but she comes from very humble roots and I don’t think she’s forgotten that. She’s still human. She’s an outstanding judge.”

“I liked her when she was on the Southern District of New York, but I think she’s doing an even better job now that she has been elevated to the Second Circuit.”

“She’s brilliant.”

“She’s very impressive. She has really done a good job and made a name for herself.”

“She’s usually right on target.”

“She’s very scholarly.”

“She’s really able to tackle anything. She really is a quick learner.”

“Even though she’s still relatively young, she has a very keen legal mind. She’s outstanding.”

“She’s very well-qualified for the job. She’s really very impressive.”

A Judicial Review: Justice Kim McLane Wardlaw

By Marc Seltzer; originally published on May 6, 2009, at

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The selection of a Supreme Court nominee raises some obvious questions. Among them is one overall concern: will the nominee be liberal, centrist or conservative?

So called “liberals” on the Supreme Court have extended greater constitutional rights in the areas of a woman’s right to have an abortion and criminal defendants’ rights to fair process than their critics accept. “Conservative” justices have hesitated to extend constitutional protections to individuals and have at times limited the government’s ability to impose restrictions on business interests. These hot-button issues are a small fraction of the work of the Court, but they do draw lines in the sand.

Centrists have been more likely to recognize the values asserted by both liberal and conservative positions and look for justice within the complexity of conflicting rights and values.

Near the top of the list of potential Supreme Court nominees is Justice Kim McLane Wardlaw of the Ninth Circuit Court of Appeals. Justice Kim McLane Wardlaw attended UCLA Law School and began her distinguished legal career in private practice. After 16 years at the Los Angeles office of O’Melveny & Myers, she was nominated by President Clinton to the federal judiciary. She worked first as a district court judge and then as a justice of the 9th Circuit Court of Appeals, where she is today.

Justice Wardlaw was supported by Democrats and Republicans in her confirmation hearings and was initially confirmed by the Senate Judiciary Committee by unanimous vote. Then, the entire Senate confirmed her unanimously. On nomination to the U.S. Court of Appeals position her Senate Judiciary hearing support was 17-1. Then the entire Senate again confirmed her unanimously.

Justice Wardlaw’s mother is Mexican-American and her father Scottish, which made her the first Mexican-American justice to be appointed to the U.S. Court of Appeals. She would also be the first Mexican-American to serve on the U.S. Supreme Court if President Obama selected her and her nomination was confirmed.

Justice Wardlaw’s positions demonstrate centrist reasoning and pragmatism. The following brief summaries of four of her opinions demonstrate that she does not always take a classically liberal or conservative view. In Card v. City of Everett, the Justice penned a majority opinion finding that a monument displaying the Ten Commandments on city land did not constitute the city’s endorsement of a religion in violation of the First Amendment “freedom of religion” restrictions.

In another case, Roe v. City of San Diego, Wardlaw disagreed with the Ninth Circuit majority and refused to extend constitutional protection to a police officer who was fired for selling adult videos of himself. The U.S. Supreme Court agreed with Wardlaw’s dissent and reversed the Ninth Circuit decision.

In Jones v. City of Los Angeles, Wardlaw wrote that arresting homeless people for occupying public property, when other shelter was not available, violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

Finally, in Allen v. Woodford, Wardlaw determined that a defendant sentenced to death would not receive a new trial despite his counsel’s failures in representation because there was overwhelming evidence of guilt such that a jury would still have sentenced him to death.

Justice Wardlaw may not satisfy those who desire certainty that every decision will reflect their political philosophy. But she is a respected moderate with tremendous high-level legal experience and the endorsement of Democrats and Republicans alike.