Tag Archives: nominee

What We Wont Learn from the Sotomayor Confirmation Hearings

By Marc Seltzer; originally published on July 9, 2009, at politicsunlocked.com.

(Linda Greenhouse’s New York Times piece about the confirmation hearings for Elena Kagan raised the issue of whether a justice can be forthcoming in their testimony to congress.  Interestingly, Kagan has articulated her belief that the executive brach has largely unfettered authority in the areas of national security, the point that I wrote about in reference to the Sotomayor hearings.  Still, I do not see any reason for Kagan to speak openly in the upcoming confirmation hearings in light of the intense politicization of the process.  My early post is reposted below.)

. .

If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.

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Redefining America: Constitution and Leadership 2010 – Nominee Elena Kagan

Marc Seltzer and Jessica Pieklo discuss:

The merits of a Kagan nomination to the Supreme Court (click to listen — loads in a few seconds)

What We Wont Learn from the Sotomayor Confirmation Hearings

By Marc Seltzer; originally published on July 11, 2009, at politicsunlocked.com

. .

If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.

The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war.  President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.

Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation.  Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide.  Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.

Underlying this and other such conflicts is the question of constitutional authority in the different branches of government.  The President is the Commander-in-Chief.  Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?

In the same vein, what are the limits of such Presidential authority?  Can the President authorize torture if he believes it is necessary for national defense?  If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?

The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit.  But a Supreme Court nominee could give us her reflections and a certain education.  This would be far more meaningful then the competing assertions of power by the administration and congress.  Of no more use are the pundits and professors who weigh in.  Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do.  The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch.   Pundits have none of this real world caution.

Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible.   There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.

I, for one, have no doubt that they are not where the President and Congress say they are.

A Judicial Review: Justice Sonia Sotomayor

By Marc Seltzer; originally published on May 11, 2009 at politicsunlocked.com
. .

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.”