The Gaggle : supreme court

New SCOTUS Term: Watch for Loosening of Gun Regulations

Howard Fineman — Thu, 01 Oct 2009 10:51:13 GMT

When John G. Roberts Jr. testified at his confirmation hearings, he promised to be an umpire at the baseball game of constitutional law, cautiously calling balls and strikes with his eyes firmly fixed on a well-understood and relatively static strike zone. Well, as chief justice, he's turning out to be more like the owner of a baseball team, or even the commissioner, eager to rewrite the rule book if not build a whole new ballpark. His activism is a boon to conservatives─but not necessarily good news for Republicans.

The latest example of the Roberts Court's activist ambitions is its quick acceptance, for decision next year, of a gun-rights appeal from Chicago. Last year the court ruled 5-4 that the right to bear arms flows to and from individuals, even though it is mentioned in the Constitution in the context of a "well-regulated militia." Reading the Constitution in that way, the court struck down a handgun ban in the District of Columbia. But there was some doubt about whether the court's reasoning would apply in a state, as opposed to the federal District of Columbia, and how the enunciation of a new fundamental individual right should be applied. Now the court will take up the appeal of a case of a handgun ban in Chicago to clear things up.

Expect another sweeping smackdown. First, the court has already laid down a new principle─which, believe it or not, had never been directly addressed. Second, if my sense of the Roberts Court is correct, they are going to seek the most sweeping rulings they can manage to get on what they regard as their key Bill of Rights issues─gun rights, freedom of the marketplace from federal regulation, corporate rights to free speech, and official public religious expression, to name four─before the arrival of a moment they dread: when President Barack Obama get's the chance to nominate an ideological tide-changing justice.

Until that moment, if it ever comes, it's going to be pedal to the metal.

A lawyer I know who knows the Supreme Court and its habits as well as anyone in Washington (but who can't speak on the record because he practices before the court) agrees. He is a cautious man, not given to wild pronouncements. But he sees Roberts and his three activist conservative colleagues─Justices Scalia, Thomas, and Alito─as being increasingly bold and assertive as they try, and generally succeed, to drag the more moderate (or some would say confused) Justice Anthony Kennedy along with them. This lawyer sees these men─especially the Core Four─as eager to carry out a sweeping campaign to lay down or rewrite as many fundamental holdings as they can get their hands on.

What that means in the case of guns is a full-scale legal assault on and sweeping away of many if not most existing regulations on their sale and possession of handguns, pistols, and rifles, at least initially. If the court decrees the use of the standard method of assessing limits on fundamental rights, it will require states and localities to show a "compelling state interest" for the regulation they seek, and a narrowly carefully tailored statute to address it. It's what the lawyers call "strict scrutiny"─and it will kill off laws by the score, at least at first.

But Republicans should beware of what they have wished for here. It is true that there has been a marked, even dramatic, decline in public support for tougher gun-control measures. For example, the Gallup poll in 1959 found that 60 percent of Americans supported a ban on the private possession of handguns. A half century later that number has been cut in half, to 30 percent. In 1991, 78 percent of Americans said that they wanted "more strict" regulation of guns; today less than 50 percent do.

And yet, if you ask Americans whether they want easier and less-strict guns laws, the answer over the years is consistent: less than 10 percent of voters say yes. That has been true since at least 1990, and probably for decades before that.

If the court acts as I think it will, by next year (if not before) states and local governments will find themselves overrun by gun-rights activists, and we'll have laws across the country like the one in Arizona, which now allows owners of guns not only to carry and conceal them in public but carry and conceal them in any bar that doesn't have a sign telling therm they can't enter if they're packing. I could be wrong (I often am), and I know that 43 percent of Americans have guns in their homes. Having a gun in your home (or a rifle for hunting) is one thing. Carrying a gun into a bar is quite another─and I can't imagine that politicians who allow it are going to be popular with the American voter.

Even Democrats like cowboys, but even Republicans (or at least independents) don't want to bring back the Wild West.

SCOTUS Watch: More on Justice Stevens Retiring

Katie Connolly — Mon, 14 Sep 2009 21:07:06 GMT

Earlier today, NEWSWEEK's Howard Fineman reported that Justice John Paul Stevens has not appointed a full contingent of clerks for next year, prompting his prediction that the longest-serving current Supreme Court justice (and the oldest) will retire next spring. This afternoon Fineman learned that two days ago, Justice Stevens sent an unusual e-mail to all his former Supreme Court clerks─several dozen lawyers, dating back to his early days on the court─inviting them to attend a reunion in D.C. next May. Stevens has never been the socialite of the court. He doesn't share some of his colleagues' penchant for ceremony, nor does he care much for reunions, so the e-mail invite struck many as conspicuously out of character. One clerk told Fineman that many of the clerks have concluded among themselves that Stevens will announce his retirement at next May's reunion. I'm not much of a gambler, but based on this latest tidbit, I wouldn't be betting against Fineman's prediction.

Fineman Predicts: Justice Stevens to Retire Next Spring

Howard Fineman — Mon, 14 Sep 2009 12:49:53 GMT

Less than two weeks ago, Supreme Court Justice John Paul Stevens made news in a typically elliptical court way. He announced that he had hired only one─as opposed to the full complement of four─clerks for next year. Reporters and bloggers (not always the same thing) speculated that Stevens, who is approaching 90 and who has been on the court since 1975, will retire at the end of the court's spring term. But let me replace the speculation with something a little firmer. Though there are no sure things in life or judging, Stevens's legion of former clerks are convinced that he will in fact retire late next spring. Stevens is known as particularly punctual and exacting about lining up new clerks early in the year. The fact that he did not do so is a certain indication that he will step down, one of his former clerks told me this week. "There is NO WAY he would go into next year without the full group," said this clerk, who spoke on background out of respect for court tradition and the behind-the-scenes role of clerks. Another former clerk, speaking on the same condition, agreed. "He's still vigorous and I think he wants to leave the court that way," this clerk told me.

While he will have many months to ponder his choices, and it is not good form at the White House to make lists, especially so early in the process, I know that many in the legal community are rooting for Harold Koh, a former dean of the Yale Law School who is now serving as a legal adviser to the State Department. He rings all the academic bells─Harvard College and Law School and Oxford, as well as Yale─and he is a Korean-American. The court has never had an Asian-American member.

An Obama-nominated replacement for Stevens almost certainly would not alter the ideological balance of the Roberts Court.Whoever takes his place will be part of the four-member "liberal" wing that has been in the minority since President George W. Bush's two nominees made it onto the court. That four-person contingent may be in the numerical minority, but it's already clear the the newest member, Justice Sonia Sotomayor, will add to the group's fizz and feistiness. I attended a Supreme Court argument last week that, by chance, was Sotomayor's first. She showed no reticence to chime in─she did so less than a third of the way through the hearing─and she seemed utterly comfortable and in command as she asked questions and made assertions in front of a packed house. She wasn't afraid to trade philosophical barbs with Justice Antonin Scalia (the bully of the court), or to discuss fine points of precedent and procedure.

I predict a future of steel-cage jurisprudential death matches between Scalia and Sotomayor─although I have the sense that these two streetwise types will become buddies (poker, etc.) when they take their robes off.

Supreme Court Revisits Campaign-Finance Reform

Holly Bailey — Wed, 09 Sep 2009 14:42:09 GMT

Is the Supreme Court poised to overhaul the nation’s campaign finance laws? That’s the question as the court holds a special session today to rehear a case that could potentially change laws that restrict spending by corporations and unions on campaigns. The case centers on Hillary: The Movie, an unflattering 90-minute film about Hillary Clinton that the conservative group Citizens United produced during the 2008 campaign. Back then, the Federal Election Commission ruled the film was the equivalent of an attack ad and therefore came under the regulation of a 2002 campaign finance law that restricts spending by outside groups trying to affect the outcome of a campaign. Citizens United promptly sued, claiming the FEC was trying to suppress free speech. While the Supreme Court will weigh whether the FEC’s actions in regard to the Hillary film were correct, the focus of the debate has shifted to a larger question: should corporations and unions be treated differently from individuals when it comes to campaign spending? Whatever the court decides could affect decades of campaign finance law and potentially open a floodgate of money on the eve of a potentially pivotal election year.

Since 1907, corporations have been banned from making direct political contributions to individual candidates. Forty years later, laws were passed banning corporations and unions from using their general treasury funds to influence campaigns. Even more restrictions were posted after Watergate. But as with any law, there were loopholes. Corporations got around the limits by making so-called soft-money contributions to the national political parties, which in turn spent that money to influence individual races. In 2002, the McCain-Feingold bill banned those contributions, as well as unregulated spending on so-called issue ads─on which an outside interest group could spend an unlimited amount of money trying to affect the outcome of a campaign. Congress approved the law, President Bush signed it, and the Supreme Court upheld it─despite criticism from a variety of outside groups ranging from the ACLU to the National Rifle Association that it restricted free speech.

The case is so pivotal that the Supreme Court is returning to work three weeks earlier than scheduled to consider it, and, in an unusual move, it is releasing same-day audio of the debate to the public. Wednesday’s proceedings will mark the debut of Justice Sonia Sotomayor, who was sworn in this summer, but it’s the conservative makeup of the court that has given many pro-reform advocates pause. Since the court’s ruling that upheld the 2002 campaign finance law, the court has added Chief Justice John Roberts and Samuel Alito, who are believed to be sympathetic to those pushing to overturn the existing law. Not that reform advocates have helped themselves. In March, a government lawyer defending precedent suggested that current rules are murky enough that Congress or the FEC could block publication of a book that endorsed a specific candidate─prompting many justices to openly gasp. “The government could ban that?” Roberts said. “That’s pretty incredible,” Alito added.

There’s not much mystery where others on the court stand: Clarence Thomas, Anthony Kennedy, and Antonin Scalia have been critical of the 2002 campaign finance reform act, while John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer have been supportive of the law. But are the court’s conservatives willing to dramatically change campaign finance law? Roberts is the justice to watch in this case, as he could be a potential swing vote. Back in his Senate confirmation hearings in 2005, Roberts spoke warily about reversing legal precedent, suggesting that undoing years of law was not necessarily good for the court. No doubt his feelings on that issue will weigh heavily as the court considers a change to decades of campaign finance law.

Sotomayor Hearings: Winners and Losers? Our Experts Weigh In.

Katie Connolly — Fri, 17 Jul 2009 12:22:22 GMT

Judge Sonia Sotomayor's confirmation hearings this week will be remembered as a civilized affair. The fiery exchanges and dramatic grandstanding that have characterized past confirmations were all but absent. Yet, tame as these were, Supreme Court confirmation hearings are always a critical barometer of power in the nation's capital: who's got it, who wants it, and who's losing it. We asked two of our experts—Howard Fineman and Stuart Taylor Jr.—to weigh in on the biggest winners and losers of the hearings.

Barack Obama: The president's first Supreme Court pick came early in his tenure, and, true to his trademark calm, he made a no-mess, no-fuss selection. "It has been inevitable since the day she was nominated that she will be confirmed by a fairly wide margin. In that sense, she and President Obama are winners," says Taylor. But Obama did take a few knocks in the hearings. Sotomayor rejected his purported judicial philosophy—the notion that judges should have empathy. She told the panel of senators that she doesn't approach judging the way the president does, and that judges can't rely on what is in their heart; they must apply the law. "This will make it harder for Obama to give the next nomination to an overt, full-throated liberal," Taylor says. Still, her hearings were smooth and her approval ratings high. Overall it was an easy win for the president. Verdict: Winner.

Lindsey Graham: The charismatic South Carolina senator's legal background was on full display as he took turns grilling and charming the nominee. Taylor thinks his comments were among the most perceptive. Unfortunately for Graham, it was his sillier moments that made the nightly news (and Jon Stewart's show), as on the first day, when he brazenly told Sotomayor she'd get confirmed unless she had "a complete meltdown." Fineman calls Graham "brilliant but erratic, seemingly kind but also duplicitous. Having said that only a meltdown could derail her, he tried to create one." Verdict: Loser.

The White House Briefing Team: That Sotomayor looked poised, calm, and prepared throughout long days of scrutiny is in part attributable to her excellent coaching. The White House team, including Biden adviser Ron Klain, White House counsel Greg Craig and newcomer Karen Dunn did an outstanding job schooling her. Fineman declares their preparations "airtight." He also praises the White House's spin team, which aggressively fed the press updates that rebutted every GOP attack within minutes. "They treated it like a presidential debate," Fineman says. The Republicans, on the other hand, were invisible. Verdict: Winners.

Liberal Legal Minds: Taylor says that liberal court watchers hoping to hear the nominee defend their philosophy of judging will be feeling sorely disappointed. "She sounded like Alito," he says of Sotomayor's comments about her approach to judging. "Instead of taking refuge in ambiguity and fuzzy generalities, she really sounded like a conservative in what she thinks judges should do. That is fairly consistent with her judicial record." Verdict: Losers.

Al Franken: Fineman and Taylor agree that the rookie senator acquitted himself admirably throughout the hearings. While fans and comics were hoping for an uproarious performance, Franken was serious, carefully prepared, yet still entertaining. "Earnest and deadpan funny," says Fineman. Taylor notes that Franken managed to score some points against Republican declarations that the word "abortion" is not in the Constitution. Franken held up a copy of the Constitution and, with Sotomayor's help, pointed out that the words "birth control" and "privacy" aren't in it either. Verdict: Winner.

Perry Mason: Sotomayor cited the fictional defense attorney as an early inspiration for her legal career. In one of the more lighthearted moments of the week, Franken observed, “It amazes me that you wanted to become a prosecutor based on the show, because in Perry Mason the prosecutor on that show lost every week.” There were a couple of cases Mason lost, but neither Franken nor Sotomayor could recall one (1963's “The Case of the Deadly Verdict” is the most famous). Why did Mason make our list? “Now everyone knows he actually lost a case,” says Fineman. Verdict: Loser.

Honorable Mentions: Fineman is pleasantly surprised by Rhode Island Democrat Sheldon Whitehouse: "Almost no one had ever heard him speak. Turns out he is an elegant and well-informed speaker and thinker." Taylor thinks chairman Patrick Leahy ran a "generally dignifed proceeding" in his first Supreme Court confirmation hearings as chair. On the Republican side, Taylor thinks "the once combative Orrin Hatch is getting so mellow that he may ripen and then rot," and that Jeff Sessions may have been a little too aggressive in questioning Sotomayor's truthfulness. "Remarkably, at least three committee Democrats—Charles Schumer, Amy Klobuchar, and Richard Durbin—complimented their Republican counterparts for questioning the nominee in a tough but fair way," Taylor says. "No senator came across as a fool or a bully, as best I could tell." And finally, props to Klobuchar, who's been representing Minnesota alone until recently. She won fans earlier this year with her hilarious speech at the Washington Press Club Foundation. She impressed again this week. According to Taylor, she "came across very well—smart, decent, nice."

Daniel Stone contributed reporting.

Top 5 Moments from Sotomayor's Third Day

Daniel Stone — Wed, 15 Jul 2009 18:52:26 GMT

Sonia Sotomayor knows exactly what she must do to be confirmed, and that's very little. If she doesn't say too much, she can't muddy the wide respect across party lines that all but guarantee her a spot on the high court. But even if legal experts aren't learning much about what kind of justice Sotormayor may be, members of the judiciary committee (as well as Sotomayor herself) are doing their best to keep the mood light. Here are the top five moments so far from the judge's third day under the lights.

1. Well then I'll do it myself: You can’t rely on anyone else to make a point better than you can do it yourself. So when Sen. Tom Coburn, a practicing doctor, wanted to press Sotomayor on abortion, he did his own dirty work. “Let's say I'm 38 weeks pregnant and we discover a small spina bifida sack on…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?” Over some snickers from the press table, Sotomayor declined to answer, saying the issue might come before the court. Really? Because we’d be very surprised.

2. Wake-up call: Just as Sotomayor was in the middle of a long and rather rambly answer, the lights in the room went off but were quickly picked up by a back-up power generator. Sotomayor stuttered slightly as everyone in the room looked around confused. “I hope I can go on…” she said. Leahy shot back to the room “I just want every to know that that was not a comment from above. I have certain powers as chairman but not that much."

3. The guards would stop you: A line of Coburn’s questioning gave the security officers in the hearing room a brief moment of alarm. Asked just how far handgun rights extend, Sotomayor argued it depended on the extent of the threat posed by a particular person. “If there was a threat in this room and I say ‘I’m going to get you,” Sotomayor started out, “and I go home and get—.” Realizing how her response could easily be taken out of context, she stopped, then almost yelled over laughs. “Please! I'm not. I don't want anybody to misunderstand what I'm trying to say. Keen to the joke, Coburn came back “You'd have a lot of 'splainin' to do.”

4. What if the issue comes before the court? Minnesota Sen. Amy Klobuchar’s first question wasn’t about abortion or guns or state’s right. Nope, it was about baseball. Klobuchar asked the SCOTUS nominee if she got a chance to watch the MLB all-star game last night. Sotomayor admitted that she hasn’t watched TV lately but did catch a few minutes of it. Klobuchar went on, telling the judge that her beloved Derek Jeter tied up the score late in the game. “You must know that he scored only because there was a hit by the Minessota Twins’ Joe Mauer,” she said. The nominee, somewhat caught off guard, grinned. “Teamwork,” she said.

5. Culture reference falls flat, then rebounds. Who said Al Franken didn’t bring his humor to Washington? The newly-minted senator waited patiently for his turn – he went last – to question Sotomayor. But when his turn came, he launched into a bizarre speech about how both he and the judge watched the dramatic TV legal series Perry Mason while growing up in New York, which apparently made Sotomayor want to be a prosecutor. Nervous eyes shot around the press table, unsure if anyone was missing something. Franken brought it up again at the end of the end of his questioning, which strengthened the reference, but it was still just as random. “I just think that’s pretty cool,” Franken said. Well doggonit Al, so do we.

Leahy's Other Role: Batman Aficionado

Holly Bailey — Tue, 14 Jul 2009 21:28:24 GMT

For the past two days, we’ve been watching Patrick Leahy run the show at Sonia Sotomayor’s Senate confirmation hearing. He’s the gruff-talking Democratic chairman of the Judiciary Committee, the guy who keeps close watch on the clock to make sure senators aren’t going over their allotted time for questioning and so on. Perhaps you know him best as the man former VP Dick Cheney told to go “F--- Himself” a few years ago. But your Gaggler can’t stop thinking about another big Leahy role: His bit part in one of her favorite films of 2008, The Dark Knight.

As you’ll see in the clip above, Leahy shows up in the scene where the Joker, played by the late great Heath Ledger, storms a party at Bruce Wayne’s penthouse. Leahy is more than just your average extra. He actually trades a few lines with Ledger, who eventually won a posthumous Oscar for the role. In the film, Leahy tries to stand up to the Joker who promptly puts a switchblade to the senator’s mouth and threatens to carve a ghastly smile on his face. Leahy, we must say, looks convincingly frightened. Perhaps it’s all the Batman-related acting gigs he’s had before. Leahy, who brags that he’s the biggest Batman fan in Washington, voiced the role of a governor in Batman: The Animated Series. And he had a non-speaking role in the absolutely worst Batman movie ever: Batman & Robin. (Senator, how could you? George Clooney isn’t that cool.) But Leahy’s obsession has extended well beyond film. A few years ago, he wrote the forward for a Batman anthology and he once contributed to a Batman comic about land mines. So when you’re watching Leahy chair the Sotomayor hearings, just think: That guy almost got knifed by the Joker. No wonder he's not scared of Jeff Sessions.

Sotomayor's Hearing Was Not Exactly Must-See TV

Holly Bailey — Mon, 13 Jul 2009 22:10:42 GMT

Photo by Gerald Herbert/AP

How exciting was the first day of Sonia Sotomayor's SCOTUS confirmation hearing? This picture says it all: Here's Sotomayor's nephews, Conner and Corey Sotomayor, snoozing away at her hearing today. We're not throwing stones here. Truth be told, after nearly five hours of opening statements, your Gaggler felt like this, too--and it wasn't the jet lag from President Obama's trip last week, either.

Is this a SCOTUS Hearing or 'Sportscenter'?

Holly Bailey — Mon, 13 Jul 2009 20:35:50 GMT

If there’s anything we really learned from the first day of Sonia Sotomayor’s Senate confirmation hearings, it’s this: senators LOVE their sports analogies. Just ask John Cornyn, who invoked football when talking about Sotomayor’s time as an appellate court judge. “A lower-court judge is like the quarterback who executes the plays—not the coach who calls the plays,” Cornyn said. “That means many of your cases don’t tell us much about your judicial philosophy. But a few of your opinions do raise questions—because they suggest the kinds of plays you’d call if you were promoted to the coaching staff.” Hmm. OK, yeah, we get it. (For the record, in Cornyn’s honor, your Gaggler is totally coining a new catchphrase—“activist quarterbacks”—for the rogue players who don’t listen to the coach. You heard it here first, ESPN!)

Everybody else went with baseball—and for this we hold Chief Justice John Roberts responsible. “Judges are like umpires,” Roberts said in his 2005 confirmation hearings. “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules.” Well, Democrats have apparently been aching to push back on that premise for the last four years, as nearly every single one of them brought up the “umpire” argument in some way or another during their opening statements today. “Many can debate whether during his four years on the Supreme Court he actually has called pitches as they come or has tried to change the rules,” Schumer said, speaking of Roberts. Sotomayor’s record, he insisted, shows that she’s “simply called balls and strikes for 17 years.” Sen. Dick Durbin, meanwhile, got in a little dig at Roberts’s umpire analogy, noting, “It’s hard to see home plate from right field.” Ooh, face!

No doubt this isn't the last we've heard of these analogies. It's a given that someone will bring up the "umpire" when senators begin questioning Sotomayor tomorrow. Or maybe Sotomayor will bring up a whole other sports analogy on her own. Judges are like ... NBA refs?

How Do Sotomayor's Hearings Compare to the Other Supreme Court Justices?

Katie Connolly — Mon, 13 Jul 2009 20:18:29 GMT

After a relatively uneventful first day of hearings, most court-watchers anticipate that Sonia Sotomayor will cruise smoothly to the Senate Floor and on to the bench. If that happens, how will her confirmation compare with her soon-to-be peers? Certainly, it will be a marked contrast to Clarence Thomas's hearings, which were arguably the most tawdry in recent Supreme Court history. When President George H. W. Bush nominated Thomas in 1991, he was under pressure from the right to appoint a reliably conservative justice. His first appointment, the recently retired Justice Souter, had turned out to be much more moderate than expected. Thomas' nomination was met with immediate suspicion on the left: He was opposed to affirmative action but Bush had selected him because he was black, a dynamic that disquieted liberals. Thomas was attacked as inexperienced, having authored no books or opinions of note.

Early in his confirmation hearings Thomas won some empathy with his stories of growing up the impoverished South. But his short, non-committal answers frustrated senators. Thomas had learned from Robert Bork, Reagan's failed nominee whose expansive soliloquys on his legal philosophy ended up causing him problems. But Thomas went too far in the opposite direction and compounded perceptions that he hadn't thought deeply enough about the law. Then came the now infamous seven-hour testimony of Anita Hill, a young lawyer who had worked for Thomas and alleged he had sexually harassed her. Hill's testimony was replete with strange and unflattering anecdotes about Thomas's tasteless jokes and appetite for pornography. (It's unlikely that "Long Dong Silver" has appeared in a Senate transcript since.) Thomas returned to testify after Hill, who had been aggressively questioned by several senators, and lashed out, vehemently denying Hill's claims. He called the proceedings a "high-tech lynching for uppity blacks." From there, the debate around Thomas's nomination became increasingly nasty and lewd. Ultimately the committee was split, and his nomination was sent to the Senate without a recommendation. Thomas shares with Samuel Alito the distinction of being confirmed by the narrowest margin. Both men scraped in with a 52-48 vote.

Where Thomas was brusque, Alito was timid. Democrats were expecting a brash, fierce "Scalito", a nickname that tied Alito to conservative Justice Antonin Scalia. But Alito appeared nervous and studious. The New York Times reported that Alito's "hands shook as he complusively tied and untied the lace of one shoe" during an early meeting with a Republican Senator. His hearings were combative nonetheless. Alito was nominated by President George W. Bush to replace moderate Justice Sandra Day O'Connor, so liberals were deeply concerned that Alito would shift the court to the right. Democrats focused on his stance on abortion and his membership of a Princeton University alumni organization that discouraged the admission of women and minorities. But they failed to muster enough votes for a filibuster, and Alito was confirmed with the support of four Democrats.

Interestingly the two justices often considered the most polarizing - John Paul Stevens and Antonin Scalia - had relatively non-controversial confirmations. Stevens is the longest serving member of the Supreme Court. A liberal known for filing dissents and separate opinions, it's easy to forget that Republican President Gerald Ford appointed Stevens. At the time of his confirmation, Stevens was seen as a moderate, an indication of how the court has changed in the past three decades. Appointed in the wake of Watergate, Ford overlooked political concerns in favor of merit. During his confirmation, Stevens wasn't even asked about Roe vs. Wade, the controversial abortion ruling that was handed down just two years earlier.

Antonin Scalia was nominated by President Reagan to replace William Rehnquist, who Reagan hoped to elevate to Chief Justice. The timing worked in Scalia's favor, as Democrats were too busy marshalling their resources against the Rehnquist nomination to provide significant opposition to Scalia. (Renquist was set to replace the more moderate Warren Burger, which left liberals worrying about the direction of the court.) Some in the left did bitterly oppose Scalia, mainly on civil rights grounds. Liberals were concerned about his positions on sexual harassment and affirmative action, but the only Senators to vote against him in the committee were Sen. Biden and Sen. Kennedy. Scalia was ultimately confirmed by a vote of 98-0. So sure was he of approval, Scalia was seen sipping champagne at party at DC's swanky Willard Hotel on the night the Senate was scheduled to vote on his confirmation.

Like Scalia, Anthony Kennedy's confirmation was overshadowed by another nomination: the disastrous Robert Bork. President Reagan had been so burned by the spectacular failure of Bork that he opted for a nominee who appeared to be a non-tedentious moderate conservative. The only real controversy around his nomination - his membership of two elite men's only clubs - was eliminated when he resigned from both. In his confirmation hearings, Kennedy gave such opaque answers that his views on polarizing issues remained unclear. As a result, politicians on both sides of the aisle projected their agenda on him. Infamously conservative Republican Senator Strom Thurmond praised Kennedy as an advocate of judicial restraint, while Senator Kennedy, bastion of the left, said he was pleased that the nominee considered the constitution a living document. Perhaps unsurprisingly, Kennedy has been the one remaining swing vote on the Supreme Court since the departure of Sandra Day O'Connor.

Since O'Connor's retirement, Ruth Bader Ginsburg has been the sole woman on the Supreme Court. President Clinton took a marathon 87 days to settle on Ginsburg as his nominee. In hearings, she declined to answer questions about how she would act in hypothetical situations. Eloquent and confident, Ginsburg told the committee, "Judges must be mindful of their place in society." Ginsburg had argued before the Supreme Court on women's rights issues six times, and some conservatives worried that her commitment to women's issues compromised her impartiality. But ultimately Ginsburg sailed through, with the Senate voting 96-3 in favor of her nomination. Ginsburg is only the second woman to have served on the Supreme Court. On the day she was sworn in, she was asked if she was liberal, conservative or moderate. "I don't believe that every child that's born alive is either a little liberal or else a little conservative, except in Gilbert and Sullivan," Ginsburg replied, referencing the operetta "Iolanthe" (and confounding the press corps.)

Clinton's second pick was Stephen Breyer, who he had initially considered for the first opening. But Breyer and Clinton had a rocky first meeting. Breyer, widely considered a pleasant optimist, was recovering from a serious bike accident at the time of the meeting. In his book The Nine: Inside the Secret World of the Supreme Court, Jeffrey Toobin writes that Clinton found Breyer "heartless." "I don't see enough humanity," Clinton reportedly told staffers. "I want a judge with a soul." But Breyer had a key advocate: Ted Kennedy, who had appointed Breyer as Chief Counsel to the Senate Judiciary Committee in 1979, when Kennedy was Chair. Breyer won Clinton over the second time, and Clinton didn't even wait for him to arrive in DC before announcing his nomination. Having worked on the Judiciary Committee, Breyer was well known to many of the Senators overseeing his confirmation. It was a largely uneventful affair, and Breyer was confirmed 87-9.

President George W. Bush originally nominated John Roberts to fill the seat vacated by Sandra Day O'Connor. But Chief Justice William Rehnquist passed away before Roberts's nomination came before the Senate, so Bush withdrew Roberts' nomination for O'Connor's seat and offered him as nominee for Chief Justice. Conservatives were thrilled by the notion of a young chief justice who could preside over the court for perhaps as long as four decades. Democrats may have put up a more aggressive fight had they not been so concerned over who would replace swing voter O'Connor. Roberts's impressive testimony raised the bar for confirmation hearings. His engaging performance was characterized by practiced erudition and deep knowledge - he quoted case law and the Federalist Papers with ease. He told the committee he was not an ideologue. But it wasn't enough to win over some on the left, who harbored lingering concerns about opinions he drafted as a young lawyer in the Reagan administration, including a legal defense of that administration's policy on abortion. Among the doubters: Barack Obama and Hillary Clinton, both of whom voted against his nomination, along with 20 other Democrats.

List of 11: Who Didn't Sotomayor Meet With?

Daniel Stone — Mon, 13 Jul 2009 15:25:45 GMT

Since President Obama nominated Sonia Sotomayor six weeks ago, the judge has met with a whopping 89 senators, more than any other previous SCOTUS nominee. Yet as high as that number is, that still leaves 11 members of the senate who Sotomayor didn't talk with before her hearings. Who are they? Meetings were deemed futile with Sens. Pat Roberts of Kansas and James Inhofe of Oklahoma, both of whom have adamantly opposed Soyomayor's nomination, promising to vote against it. She was also unable to meet or talk with senate elders Robert Byrd of West Virginia and Ted Kennedy of Massachusetts, who have both taken time off to deal with health ailments. That leaves Wyoming Senators John Barrasso and Michael Enzi, Kit Bond of Missouri, Richard Burr of North Carolina, Richard Lugar of Indiana, John Ensign of Nevada and Arizona's John McCain. Bob Corker of Tennessee initially called off his meeting with the justice-in-waiting after she called to say she'd be 10 minutes late, but after word got out of the missed connection, his office asked to reschedule. All of them, you might note, are Republicans, which reasonably makes them slow to warm to the nominee of a Democratic president. But we're also told it was a function of time. Obama nominated Sotomayor at the end of May, giving her a month and a half to trek the long and confusing halls of Capitol Hill for the meet-and-greets. And, don't forget, she had to do with her ankle in a cast after she injured it in early June. Still, 89 is a big number, but it's not high enough. A spokesperson for Sotomayor says the meetings and courtesy calls will continue after the hearings.

Obama on Putin, Pies and GITMO

Holly Bailey — Thu, 02 Jul 2009 18:45:32 GMT

Here's more from President Obama's interview this morning with the Associated Press’s Jennifer Loven:

On Russia, Obama was asked why he plans to meet with former Russian President Vladimir Putin in addition to talks with current leader Dmitry Medvedev. “(Putin) still has a lot of sway…and I think that it's important that even as we move forward with President Medvedev that Putin understand that the old Cold War approaches to U.S.-Russian relations is outdated — that's it's time to move forward in a different direction,” Obama told the AP. “"I think Medvedev understands that. I think Putin has one foot in the old ways of doing business and one foot in the new, and to the extent that we can provide him and the Russian people a clear sense that the U.S. is not seeking an antagonistic relationship but wants cooperation on nuclear nonproliferation, fighting terrorism, energy issues, that we'll end up having a stronger partner overall in this process.”

Also on foreign policy, Obama said he was “not reconciled” with the idea of Iran having nuclear weapons. The president also expressed some reservations about his recently announced policy of putting some high risk Guantanamo Bay detainees in “indefinite detention” as the administration moves to close the prison next year. “It gives me huge pause,” Obama said, suggesting he may not follow through on the policy.

In perhaps his most interesting comments, Obama weighed in on the Supreme Court’s ruling on affirmative action this week, in which it decided in favor of a group of white firefighters in New Haven, Conn., who sued the city for reverse discrimination. The ruling overturned a verdict laid down by an Appeals Court judge named Sonia Sotomayor. (Maybe you’ve heard of her.) SCOTUS, Obama said, was “moving the ball” on affirmative action, but he noted that the court had ruled out the use of racial preferences in hiring. Still, he spoke sympathetically toward the white firefighters, telling Loven, “I’ve always believed that affirmative action was less of an issue or should be less of an issue that it has made out to be in news reports.”

In addition to the Michael Jackson comments, Obama also weighed in on life at the White House. His biggest pet peeve: having to wear make-up all the time. "The shine police," he groused. On the plus side, he raved about the White House pastry chef, who “makes the best pie I’ve ever tasted."

Is Sotomayor Really a Bully or Are People Just Sexist?

Holly Bailey — Mon, 15 Jun 2009 16:53:45 GMT

NPR’s Nina Totenberg had an interesting piece on Morning Edition this morning looking at the main rap against Sonia Sotomayor. Long story short, people have said she’s pushy, going so far as to describe her as “bully” on the bench. The labels have been circulating for months, long before Sotomayor was actually named as Barack Obama’s Supreme Court nominee. Since then, the White House has gone to great lengths to push back against the claims, producing clerks and lawyers who have worked with Sotomayor who insist she’s just fine. But the rumors just won’t go away. More recently, Sen. Lindsay Graham has cited reviews mentioned in The Almanac of the Federal Judiciary, which included anonymous comments describing her as a “terror on the bench” and “overly aggressive.” But is the criticism legitimate or is it, as some Sotomayor allies suggest, a case of her being picked on for being a strong woman? For the piece, Totenberg listened to audio recordings of two oral arguments made before Sotomayor—portions of which aired in the story this morning and are well worth a listen. One of the oral arguments is from the much-debated New Haven firefighters case, which is still pending before the Supreme Court. Here's Totenberg:

In another case, currently on appeal to the U.S. Supreme Court, Judge Sotomayor was one of three judges considering whether the city of New Haven, Conn., could discard the results of a fire department promotion exam because no African-American ranked high enough to be promoted. Under federal law, an employer can be held liable even for unintentional discrimination if the employer uses a test that disproportionately excludes minorities. At oral argument, Judge Sotomayor was the dominant questioner, and she gave both sides a hard time.

She pressed the lawyer representing the white firefighters this way: "We're not asking that unqualified people be hired — the city's not suggesting that. But if your test is going to always put a certain group at the bottom of the pass rate so they're never, ever going to be promoted, and there is a fair test that can be devised, then why shouldn't the city have an opportunity to try to look and see if it can develop that?" Conversely, in questioning the city's lawyer, Sotomayor repeatedly asked what was wrong with the test that was given and whether any valid alternatives exist. "What they're saying is … you shouldn't permit race to be the driving force," Sotomayor said. "You have to look at the test and determine if the test was fair or not. And if you're going to say it's unfair, point to specifics of ways it wasn't and make sure there really are alternatives."

In the audio, Sotomayor is no doubt aggressive in her questioning but does not appear to be any more so than most judges--though, of course, these are just two cases. But Totenberg, who is much smarter than your Gaggler when it comes to history on the court, says Sotomayor's tone seems "routine" compared to what happens at the Supreme Court--and includes audio of Chief Justice John Roberts and Justice Antonin Scalia to prove it.

Sotomayor: Woman of Steel?

Katie Connolly — Tue, 09 Jun 2009 16:35:31 GMT

Just how tough is Sonia Sotomayor? Holly recently noted an episode from her time as a private attorney when she gave chase to some crooks on a motorcycle through the streets of NYC. Yesterday, we learned that she fractured her ankle at La Guardia Airport before boarding her flight. She was traveling to DC for meetings with Senators and White House officials, and wasn't about to let a little thing like a broken ankle get in her way. Sotomayor boarded the plane regardless, went directly to the Old Executive Building (the office building adjacent to the White House where many senior officials work) upon landing and attended meetings. It was only THEN that she decided that her pained ankle needed some treatment. A White House physician soon sent her to a nearby hospital for x-rays which determined that yes, that throbbing pain in her ankle was actually a fracture. Now, in a substantial cast which has reportedly been signed by a couple of Senators, she's still holding meetings. She'll meet with 8 Senators today, after meeting with 6 yesterday. Anyone who's had or known someone with an ankle fracture is aware just what a physical feat that is.

In other news, the Associated Press has just reported that the Senate has decided Sotomayor's hearings will commence on July 13. That's just over a month away, so Sotomayor might make history not just as the first Latina SCOTUS nominee, but as the first one to attend her own hearings with her ankle in a cast.

Gingrich Apologizes for Calling Sotomayor a Racist

Holly Bailey — Wed, 03 Jun 2009 13:39:11 GMT

In a lengthy message posted on his Web site today, Newt Gingrich apologizes for calling Judge Sonia Sotomayor a “racist" over her comment that a "wise Latina woman" could reach a better decision than "a white male who hasn't lived that life." Here’s Gingrich:

My initial reaction was strong and direct -- perhaps too strong and too direct. The sentiment struck me as racist and I said so. Since then, some who want to have an open and honest consideration of Judge Sotomayor’s fitness to serve on the nation’s highest court have been critical of my word choice. With these critics who want to have an honest conversation, I agree. The word “racist” should not have been applied to Judge Sotomayor as a person, even if her words themselves are unacceptable (a fact which both President Obama and his Press Secretary, Robert Gibbs, have since admitted).

That's not to say the former House Speaker is suddenly on the Sotomayor bandwagon. In the message, Gingrich cites the Sotomayor's ruling against the New Haven firefighters as a case where "equal justice for Americans" did not prevail. In other words, Gingrich is not callling her a "racist" but he's suggesting race played a role in her decision-making. He defends his believe that Sotomayor is a "radical" based on her various speeches and writings that she's delivered off the bench in recent years. However, Gingrich concedes, “many of her rulings as a court of appeals judge do not match the radicalism of her speeches and statements. She has shown more caution and moderation in her rulings than in her words.”

All of this comes days after many Republicans were critical of Gingrich and Rush Limbaugh for using incendiary language about President Obama's Supreme Court nominee. Here's what your Gaggler is wondering: Did someone lean on Gingrich to dial back his words?