Recently in SCOTUS Category

Last May, the Supreme Court faced a textbook case of pay discrimination. Lilly Ledbetter was one of a few women supervisors working at a Goodyear Tire and Rubber Company plant in Gadsden, Alabama, and she remained at the plant despite her bosses' bias against women. One even told her that "the plant did not need women," that women "caused problems." For almost two decades, the company systematically downgraded her performance evaluations to pay her less than male colleagues who performed the same duties. Her pay eventually fell 15 percent to 40 percent behind her male counterparts.

In 2003 a jury found that Ms. Ledbetter was paid less because she is a woman, and she was awarded full damages to correct the injustice. But in a 5-4 opinion, the Supreme Court held that Ms. Ledbetter was entitled to nothing at all. The majority ruled that she should have filed her case within a few months after the employer decided to pay her less than her male coworkers.

Ann nails it:

Yes, because you and your fellow members of Congress wrote a bad statute. Fix it.

Sen. Kennedy would prefer that the court ignore the statute of limitations Congress wrote into the law. Pathetic. And sad, as Ted isn't the only liberal who believes that the court should ignore law and substitute whatever populist pap they feel like - making up law as they go. All of the Democrats running for President would appoint judges who would fulfill Teddy's judicial wet dreams.

This is exactly why the upcoming election is so important.

I'd be remiss if I didn't point out the irony in Ted Kennedy writing an article with the words "wrong turn" in the title.

The article goes on to highlight the Alito and Roberts confirmation hearings and the sheer audacity of the two most recent justices to refuse answering a few questions. I wonder why his outrage was suppressed when Ginsburg was confirmed?

That would be Justice Antonin Scalia. Speaking at a Federalist Society gathering, he addressed the subject of the "living constitution":

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

I hope the liberals who kept harping about the "living constitution" during the Roberts and Alito hearings take note - this was directed at you.

If the Supreme Court ever starts an OJT program, I want Scalia to run it.

I wish Justice Scalia could hear the applause in my household. Justice Scalia, please don't ever change.

Justice Steven Breyer speaks out on his judicial philosophy:

CHICAGO - Supreme Court Justice Stephen Breyer says he frequently makes decisions about a law's constitutionality by considering its purposes and consequences, which puts him at odds with fellow justices who try to adhere strictly to the language of the Constitution.

Breyer, on the court since 1994, didn't single out any particular justice or discuss his new colleagues, John Roberts and Samuel Alito, during his speech Tuesday at the University of Chicago Law School.

He said, however, that he hadn't detected any split on the high court along Republican and Democratic ideological lines.

"I haven't seen that kind of politics in the Supreme Court. Zero. It doesn't exist," he said.

Breyer talked about other differences in how the justices make decisions, saying they can consult six basic criteria in assessing a law: the language of the law, the history of the text, tradition behind the text, precedents, the purpose of the law and the consequences of letting the law stand or striking it down.

"I tend to emphasize purpose and consequences," said Breyer, who was nominated for the high court by President Clinton. "Others emphasize language, a more literal reading of the text, history and tradition — believing that those help you reach a more objective answer."

As examples of his own stress on consequences, Breyer pointed to two decisions last year involving the Ten Commandments.

He decided a display of the commandments in front of two Kentucky courthouses was unconstitutional because he concluded their display would cause religious conflict. But he found that removing a similar display that had been in front of the Texas State Capital for years would not, so he ruled it constitutional.

This is why the SCOTUS nominations of Alito and Roberts were so important. And if we have another opening, critical. Constitutional issues should be based on the constitution, not a someone's idea of what a nice result would be. The view that Justice Breyer holds is the same one that drives the judicial activism that has marginalized the voter's decisions countless times in recent years. This is the view that allows the left to gain through the courts what they never could at the ballot box.

Thanks to Justice Breyer for reminding us.

Congrats to Justice Alito, who was sworn in just a little while ago by President Bush.

This is a large victory for common sense. Bush promised to appoint judges that wouldn't legislate from the bench, and he's really delivered with Roberts and now Alito.

TB and I wish Justice Alito a long and productive career on the Supreme Court.

Via AP/Yahoo:

All 10 Republicans voted for Alito, while all eight Democrats voted against him. The partisan vote was almost preordained, with 15 of the 18 senators announcing their votes even before the committee's session began.

The full Senate expects to take a final vote on Alito's nomination before the end of the week. That vote is also expected to follow along party lines, with only one Democrat — Ben Nelson of Nebraska — coming out so far in support of Alito. Republicans hold the balance of power in the Senate 55-44, with one independent.

This one's going to have long-term ramifications for the Democrats. The demand from party leadership to ignore Alito's qualifications and vote against him for party gain sets the tone for future SCOTUS nominations including those that the left might make if they get back into the white house.

Via AP/Yahoo:

WASHINGTON (Reuters) - U.S. Sen. Patrick Leahy (news, bio, voting record) of Vermont, the top Democrat on the Senate Judiciary Committee, announced his opposition on Thursday to Supreme Court nominee Samuel Alito.

Also not a surprise:

Other leading Senate Democrats planned to declare their opposition later in the day to Alito, who nonetheless appears headed toward confirmation in the Republican-controlled Senate.

I guess Ben Nelson was an anomoly. And there's this as well, showing the strategy (if you can call it one) of the Dems in this matter:

WASHINGTON, Jan. 18 - With little chance of stopping Judge Samuel A. Alito Jr.'s confirmation to the Supreme Court, Senate Democratic leaders urged their members Tuesday to vote against him in an effort to lay the groundwork for making a campaign issue of his decisions on the court.

The vote count "matters a lot, and I think the debate leading up to it matters," said Senator Richard J. Durbin of Illinois, a member of the Judiciary Committee and the Democratic whip.

"If a nominee disappoints the country with their service on their court and their decisions, I think some people may ask the important question, Did the Senate really take a close look at this nominee?" Mr. Durbin said. "Did they tell us this was coming?"

So there you have it. If you were going to vote yes, don't - for the good of the party.

It's not about Alito's qualifications for the court. That's irrelevant.

It's about political posturing. And the country be damned.

Update (5:00 PM EST): Family Research Council: "Once again, it is clear that shameless partisan Democrats, beholden to their extreme liberal base, are committed to politics over a fair constitutional process."

Yep.

First, I agree with Peggy Noonan from yesterday's Wall Street Journal:

"But this one is all kind of over, isn't it? It definitively ended when Mrs. Alito walked out in tears. But to me it seemed over on day one. The Democrats on the committee seemed forlorn in a way, as if they knew deep in their hearts that nobody's listening. Two decades ago they could make their speeches and fake their indignation and accuse a Robert Bork of being a racist chauvinist woman hater and their accusations would ring throughout the country. But now the media they relied on have lost their monopoly. Everyone who's fired at gets to fire back, shot for shot."

The badgering Judge Alito endured from the Dems reached apogee when his wife left that room, underscoring the fact that Schumer, Kennedy, etc. had crossed the line numerous times in their uncivil monologues. All except Biden, of course. He passed the opportunity for monologues by and went straight to soliloquy as a preferred method of communication.

You could sense the desperation of the Democrats this week. 700+ questions, and they made their most impassioned points on Roe, CAP, Vanguard, and NSA intercepts. The questioning on CAP was especially telling of the Dem's mood as they asked the same questions over and over again, hoping for some sort of Perry Mason moment where Alito might break down in tears and confess that he may have actually met (and heaven forbid, shook hands with) other members of CAP when he joined.

Yet, as Peggy writes, it was already over. There was to be no Perry Mason moment. The Democrats launched a coordinated effort to break Sam Alito, and they failed miserably.

Imagine what it must have been like behind the scenes. The Senator's staffs, along with the usual special interest groups whose interests the Dems have been placing above those of the nation during the past few days, must have been working around the clock to carefully parse the Judge's every word and try to find inconsistancies and anomolies to use in the next day's badgering questioning. How many people worked at these tasks? 50? 100? More?

Yet they found no red meat. All they were left with was CAP and Vanguard - slim pickings indeed. But in the wake of their embarrassing disaster, they still cling to some hope. "Maybe if we had more time...", as if they hadn't enough already. And so it is that the Democrats are demanding that they be given more time to review everything in a vain attempt to find something, anything, that they can use to support a filibuster or worse:

WASHINGTON - Samuel Alito's nomination to the Supreme Court is gliding toward confirmation despite a week of hearings in which Democrats tried to hobble his prospects with withering questions on abortion, presidential power and ethics.

I would suggest that the questions I watched were far from withering - they were transparently desperate - but I digress.

Democrats argue that the former Reagan administration lawyer is likely to tip the court's balance to the right in replacing centrist Sandra Day O'Connor. But with little success so far peeling away Alito's support to be the nation's 110th Supreme Court justice, the Democrats were noncommittal about trying to mount a filibuster on the Senate floor.

Instead, they are seeking to slow Alito's ascension by demanding that the Judiciary Committee's chairman, Sen. Arlen Specter (news, bio, voting record), R-Pa., delay the panel's vote a week.

Senate Democratic leader Harry Reid "is urging all Democrats to refrain from committing to a vote either for or against confirmation prior to the caucus next Wednesday," Reid spokesman Jim Manley said.

The hearings wound toward a close Friday with testimony from law professors, former colleagues and a representative of an abortion rights group.

Democrats want to give their caucus time to study the hearing transcripts, Manley said. Also to be considered is whether any reason exists to filibuster the nomination, but the chances of such a maneuver appeared slim.

"I don't think he's going to get many votes from Democrats on the committee," Sen. Charles Schumer (news, bio, voting record), a New York Democrat on the committee, told CBS' "The Early Show." "As for a filibuster, it's something we'll have to discuss. So it's not on the table or off the table right now."

You can almost smell the fear, can't you? You could smell it yesterday, when many of the Dems chose to be absent during the testimony of judges supporting Alito:

They also objected to a panel of Alito's colleagues on the Court of Appeals, saying that the judicial code of ethics advises against judges presenting character testimony. They said Alito would be faced with a conflict of interest after receiving the judges' endorsements if decisions by those judges ever end up before the Supreme Court. Leahy declined to question the panel in protest.

This, of course, was a stupid argument - if you really want to find out about someone, ask the people who are closest. And judges have testified or submitted supporting (or dissenting) letters on nominees in the past. Besides, not one Democrat seemed concerned about any code of ethics when they demanded that Alito rule as to whether he would uphold or overturn Roe in advance of actually hearing a case as a justice.

The press had us geared up for a far more substantial battle than the Dems were actually prepared to fight. And a more fitting validation of the quality of President Bush's judicial picks can be found nowhere if not in the spectacular failure the Dems have experienced this week.

Joe Biden thinks the confirmation hearing process is broken and should be deep-sixed:

WASHINGTON - Supreme Court nominees are so mum about the major legal issues at their Senate confirmation hearings that the hearings serve little purpose and should probably be abandoned, Democratic Sen. Joe Biden said Thursday.

"The system's kind of broken," said Biden, a member of the Judiciary Committee considering the nomination of Judge Samuel Alito.

"Nominees now, Democrat and Republican nominees, come before the United States Congress and resolve not to let the people know what they think about the important issues," such as a president's authority to go to war, said Biden.

As the committee headed into its fourth day of hearings on the Alito nomination, Biden told NBC's "Today" show that a better solution might be to skip hearings and send nominations straight to the Senate floor for a vote.

"Just go to the Senate floor and debate the nominee's statements," the Delaware senator said, "instead of this game."

I'm sure that many would agree. Personally, I hope we keep the confirmation process intact so that the public can see what an embarrassment the Dems have made of it. But what evades Sen Biden is that it's the questions and those doing the asking that are the problem, not the nominee's answers:

Biden defended Democratic senators' questions about Alito's membership in a university group, Concerned Alumni of Princeton, known for its opposition to opening the school to women and bringing in more minorities. Alito's wife, Martha-Ann Bomgardner, was moved to tears during the hearing Wednesday because of questions concerning whether her husband held any bias against women or minorities.

"I take him at his word that he didn't know what the group stood for, but I'm required to ask him," Biden said. He said membership in the group raised questions about "how sensitive he is to the plight of women."

And ask him again, and again... but you take him at his word. Nice that he gives such a good example of what's really broken in the same interview, yet he refuses to see it for what it is. Major legal issues, indeed. Crazy Politico nails it on the head:

"With over 4000 cases before the 3rd District Court, the opposition party has spent 3 days worrying about his time at Princeton 15 years before that, and not going over problems with his opinions in those cases. The reason is there are no problems with them. Even liberal judges and lawyers have sent in letters praising his conduct on the bench."

Crazy Politico has more as well. I'll add to his list the questions asked solely to give the Democrat Senators yet another opportunity to bash the President. Totally inappropriate and off-topic. And a shameful lack of respect toward Judge Alito and the American public whose interests are supposed to be represented here.

Like most of you, I've been trying to soak up as much as I can about the hearings. I don't have the resources at work to watch or even listen live, but I've caught the last part of the day live after work and have depended on pundits and the web to fill in the gaps. A couple of observations:

PowerLine, as usual, has the most engaging commentary on the hearings. I think Scott is a little over the top in declaring that "Alito may in fact be the best-qualified man in the country for the job", but to be fair Scott has the experience to say such things whereas I don't.

But I'm not posting this to pick on Scott - rather, I wanted to point out another of his posts in which he descibes a couple of former clerks, both Democrats, who enthusiastically support Judge Alito:

"They have come out to support Judge Alito as a man of sterling character and an exemplary judge. They say they are confident that he will not advance a political agenda. They say the imputation of racism to Judge Alito and the implication that he supports discrimination is personally offensive to them. They consider it an embarrassement to senators they would otherwise support. Jim describes the venture as a terrible attempt to discredit a man of unassailable integrity in front of milions of people."

In many respects, this kind of thing is meaningful and helpful to non-lawyers like me. The kind of person you are is reflected in the lives you touch, when those who would normally be rivals step up to offer defence, it should certainly help the public gain some confidence that Alito is the right choice.

Scott also mentions Mrs. Alito's exit from the hearings today - I just saw Schumer on Fox News (5:56 PM EST), when asked by John Gibson about Mrs. Alito leaving in tears, he said, "I don't know anything about that". Is he even on the same planet with the rest of us?

In the coverage I've seen so far, Judge Alito appears to me to be under plenty of stress. He's not as polished and unflappable as Judge Roberts was. That's not a bad thing, though. I don't think I'd last very long under the continuous badgering from the Dems - most likely I'd have taken my ball and bat and gone home in the first few hours. And I think most of the viewing public view it the same way - the Dems' malicious attacks are in the end garnering a lot of sympathy for Alito, and I'll predict that the polls will reflect it.

It really does seem that the Democrats are helping public support for Judge Alito more with their actions than they could if they supported him themselves.

I hope that getting it right becomes a trend:

The U.S. Supreme Court on Monday declined to review a ruling that the inscription "In God We Trust" on the front of a government building in North Carolina does not violate church-state separation.

In other words, Lexington, NC, doesn't have to spend tax dollars to remove a sign above their government center's front door.

A U.S. appeals court ruled that the lawsuit failed to show that the display had no legitimate secular purpose, that it has the effect of endorsing religion or that it has resulted in an excessive entanglement of government and religion.

The appeals court said Congress first authorized the phrase "In God We Trust" on coins in 1865, and Congress made it the national motto in 1956. It is inscribed above the speaker's chair in the U.S. House of Representatives and above the main door of the U.S. Senate chamber.

Way to go, guys!

Normally when I see someone using a coffin as a stage for political hackery, I think of Cindy Sheehan. This morning, Chuck Schumer showed that he could ably out-exploit the master with this forceful meeting of boot and tomb:

The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.

Cindy, take note. You have competition.

Update: The Duchess of Dismay noticed and answers by grinding her stilettos into her son's back. Damn, I love a good fight...

I heard the press conference on the radio while driving home from work. Fitzgerald seemed to have the press firmly at bay as they asked questions about matters he is required to keep confidential. On the Libby indictment, he was very articulate and sounded very confident of the charges. And well he should - that's his job. However, Libby also has a story to tell, and as this goes to trial we'll get more information. That is unless he gets a plea bargain.

Also, Fitzgerald was pretty clear that the current grand jury was to be dismissed. While he reserved the right to continue the investigation with other grand juries, it seems to me (as a non-lawyer) that he would have to re-cover considerable ground to do so. This alone tells me that it probably won't happen unless Fitzgerald gets something damning that he doesn't already have.

In the meantime, the left is has become even more delusional. Take for instance, Howard Dean's statement about the indictment (hat tip Polipundit):

"Beyond the evidence that the White House manipulated the intelligence used to justify the war in Iraq, a group of senior White House officials not only orchestrated efforts to smear a critic of the war, but worked to cover up this smear campaign. In so doing, they ignored the rule of law, endangering our national security and the brave men and women who dedicate their lives to protecting our nation's security. I. Lewis Libby was a part of this internal White House group."

Obviously the radio in my car is broken, else I would have heard at least some of what Howard did. Here's one from Nancy Pelosi:

"The criminal indictments of a top White House official mark a sad day for America and another chapter in the Republicans' culture of corruption. At the heart of these indictments was the effort by the Bush Administration to discredit critics of its Iraq policy with reckless disregard for national security and the public trust."

Two extra points to Nancy for working in the now ubiquitous "Culture of Corruption". Of course, whenever Nancy speaks, her buddy Harry Reid can't be far behind:

"This case is bigger than the leak of highly classified information. It is about how the Bush White House manufactured and manipulated intelligence in order to bolster its case for the war in Iraq and to discredit anyone who dared to challenge the president."

More disturbing are the comments from John Conyers. As many of you know, he's been lurking in the dark and dangerous halls of the Huffington Post:

"I believe it is imperative that Congress pursue these questions and determine how these charges fit into the entire web of deception, manipulation and obfuscation laid bare by the Downing Street Minutes and Treasongate. As a result, I have directed my staff to conduct a comprehensive investigation and review of the facts concerning not only alleged efforts to misuse the White House to out a CIA operative, but misinformation concerning the run up to the Iraq War, and all legal violations and breaches of trust by the Administration concerning the War."

I know "treasongate" is a popular term in moonbat circles nowadays, but a member of congress shouldn't be so cavalier about using the "T" word. It doesn't apply here. Conyers has been one of the nuttiest thoughout the Plame investigation, wanting to impeach Rove before anyone has determined whether any crime was actually committed. And this is the same Conyers who held a mock impeachment trial of the President earlier this year. If they had awards for the most reckless and delusional political attacks, Conyers would get my vote easily.

But back to Libby. If he did lie to the grand jury, well, that will come out, and he'll get his due. But the feverish and irresponsible treatment of this affair by the left and the media have caused damge to Libby and others that can't be reversed.

In response to this:

Miers Withdraws Supreme Court Nomination

While I hope the re-do goes to Luttig or Brown, I fear we'll probably get Gonzales next.

DJ Drummond has an interesting article over at Polipundit. I'm still digesting it, and may comment later (or not), but wanted to pass it on now:

Incipiency

He makes a lot of very good points about the likelyhood that Harriet Miers will be confirmed, and why those opposed haven't had much traction outside the talking head circuit.

I still remain opposed to Miers, though. If DJ is right, then I'm all dressed up with no place to go.

Good stuff. Go read.

73% oppose Harriet Miers on Truth Laid Bear's blogger poll.

Not that the President has taken notice. But there are those that think he's telegraphing a way out:

Calling all Republican Senators

Somebody please pass Polipundit's post to every Republican Senator. At least once each day until they pay attention.

Via AP/Yahoo:

Bush Won't Release All Miers Documents

But the disagreement will be over what is privileged and what isn't. Hopefully it won't matter and Harriet Miers will withdraw.

Hey, I can dream can't I?

about Harriet Miers. Previously, I'd said that I had settled down into the "oh, go ahead and have a confirmation hearing" mode. After further reflection, I think it would be best if she withdrew.

One of my concerns previously was that it would make a subsequent nomination more difficult should she drop out. But considering the circus that this has become, I now think it would be far more damaging to let the hearings go on.

You've all probably seen the stereotypical movies when some underdog gets to a high position in sports or business (or some other endeavor), bypassing the establishment? Usually the hero shoots the winning goal or winds up running the corporation even though they had little more going for them than a little moxie or maybe some unrefined talent. This kind of "feel good" situation is fun for a movie script (hell, who wouldn't like to be Brewster or Annie?) but totally inappropriate for a SCOTUS pick. And no matter how wonderful President Bush's view of Miers is, that's the way she looks to many of us.

75 or 150 years ago, constitutional law was surely less complicated than it is now. Fewer laws, fewer precedents. It was probably OK to pick someone with little or no constitutional law experience back then. Today, we need someone who is totally prepared to perform on their first day of work. SCOTUS is not a place where we should be setting up an OJT program.

Update: N Z Bear is tracking the thumb orientation (up or down) of the blogosphere. So, I oppose the Miers nomination. (His site is scanning for certain phrases, see here for details).

I haven't said much about Harriet Miers. Fact is, within 30 minutes after the nomination much of my feelings had already been expressed by other blogs that follow SCOTUS more closely than I do. I am still opposed to the nomination, but have settled into the "lets give her a confirmation hearing" mode. I think politically the fallout from a withdrawn nomination and subsequent re-nomination would only serve to embarass the administration more, and may handicap the followon nominee.

The role that Miers has taken in the nomination process does have me curious, though. It's been widely reported that she was immersed in the process that vetted potential nominees such as Roberts, Luttig, Brown, and a handful of others; extraordinarily well qualified candidates with impressive credentials and respectable track records. Somehow, she has come to view that she fits in with this very distinguished crowd, else she wouldn't have accepted the nomination.

The question I have for both of you, dear readers, is this: What do you think this says about Harriet Miers? Personally, I can think of a few things, and not all positive. Leave a comment and let me know what you think.