Bill Scher's LiberalOasis

Home of the This Is Not Normal podcast, Bill Scher columns and other liberal commentary

Category: Judiciary

Sotomayor confirmed. What’s next?

I think it is probably okay for me to say Supreme Court nominee Sonia Sotomayor was as qualified as any Supreme Court nominee in recent history. Congratuations to her and her family!! She will be great.
Republicans were going to oppose anyone that Barack Obama had chosen. Their goal is to obstruct, obfuscate and delay. They could not delay or obstruct this nomination although they tried. Instead, the Republicans think they have changed the rules of the game. Now, they believe that no Supreme Court nominee can be empathetic. In my opinion, the Republicans painted themselves into a corner. I think it will cost them at the ballot box for years to come. They painted Sotomayor as dumb, stupid, a racist and a feminist. Minorities and women will not reward them for smearing her. In the end, it really doesn’t matter what she said outside the courtroom as long as her opinions and rulings were solid. They were solid. There is no doubt that they were. This is why the Republicans attacked her on her public statements.
Watch the video:

What’s next? This is one of the things that I’m concerning myself with at this time. Who is Barack Obama’s next choice to sit on the Supreme Court? I think that there is a lot to consider. Most importantly, unfortunately you have to take this into consideration, what will the Senate look like. If the choice is between now and the midterm elections, I would suspect that Barack Obama would pick someone who is a strong moderate. Again, I think you would pick someone who is relatively low profile. If the Democrats pick up a few more seats in 2010, I would look for Barack Obama to choose someone who is more liberal than Sonia Sotomayor. This would make things very interesting.
Here are a few names to keep in mind Elena Kagan, first woman to serve as solicitor general and was the Dean of Harvard Law school, Harold Koh, Dean of Yale Law school, Leah Ward Sears, Chief Justice of the Georgia Supreme Court. I look for Obama to lean more towards women. Women are clearly underrepresented on the Court.
There are a few other names that are floating around which would include Janet Napolitano, former governor of Arizona and now Secretary of the Department of Homeland Security and Governor Jennifer Granholm, Governor of Michigan. Although both of these women would be great I think they would have a hard time confirmation. The process has become so politicized and politicians are filmed constantly. I’m sure there’s some footage of each one of these women saying things that will inflame and incite conservatives. There’s no reason to go down that road.

Justice David Souter to Step down – Now What?

01souter_190Reality is completely strange and unpredictable. President Barack Obama is juggling 10 or 15 major crises. Now, there reports that Justice David H. Souter plans on retiring. At age 69, Souter is far from the oldest justice on the Supreme Court. Justice John Paul Stevens is 89. I thought Justice Ruth Bader Ginsburg who just underwent surgery for pancreatic cancer would retire soon. She’s given no indication that she is planning on retiring any time in the near future.
To underscore how far the Republican Party has drifted to the right, David Souter was nominated by George HW Bush. David Souter is now thought of as a liberal.
It is clear that Barack Obama would choose a thoughtful, conscientious, pro-choice liberal to replace David Souter. There is speculation that he would choose a woman. Whatever liberal he chooses will not substantially change the balance of the court.
My question is how hard will Republicans fight against a pro-choice nominee? I think the fight will be to the death. It will be extremely ugly. Obama will have to chose someone who can stand up to 19x the scrutiny that Harriet Miers got. The Fox news crowd will be apoplectic. On the liberal side, there a lot of factions that would like to be appeased –civil rights activists, women’s rights activists, environmentalists and gay-rights activists are just a few of the groups that I can think of off the top of my head.
WaPo has more:

White House advisers have been drafting lists of potential replacements virtually since Obama took office, and the list is said to also include Stanford University law professor Kathleen M. Sullivan, Kim McLane Wardlaw of the U.S. Court of Appeals for the 9th Circuit, Michigan Gov. Jennifer M. Granholm and Georgia Supreme Court Chief Justice Leah Ward Sears. Souter, who has been on the court since October 1990, was nominated by President George H.W. Bush on July 25, 1990, to a seat vacated by William J. Brennan Jr. He was confirmed by the Senate on Oct. 2, 1990. (more… )

Netroots nation – Don Siegelman

Don Siegelman, former Democratic Governor of Alabama, is being interviewed by Sam Seder. If you are not familiar with Don Siegelman’s case, I have several posts (here, here and here).
Don Siegelman’s story is something that everyone would should know. If a former governor could be treated like this the rest of us are in serious trouble.
Don Siegelman has a new web site – www.contemptforrove.com. Please take some time and look at this site.
BTW, I’m here at the conference. I know that Bill is here and we haven’t seen each other, yet.

Conservative Activism Grips Our Supreme Court

Typically I do my Supreme Court blogging here at LiberalOasis, but the following graced the Campaign for America’s Future blog first.
Way too many folks rolled over when John Roberts and Sam Alito were nominated for the Supreme Court. And now we’re seeing the consequences.
In my recent book, I characterized the conservative judicial activist agenda as “elitist government, no longer representative of and responsive to the people, handcuffed from insisting upon responsible corporate behavior, but free to subject all Americans to one group’s version of morality.”
And today, we’re seeing that vision in all its glory.
The conservative activists on the Supreme Court decreed in a series of 5-4 decisions:
* Individuals, who believe their tax dollars are being unconstitutionally misused by the White House to promote religious beliefs, aren’t allowed to enter a courthouse to make their case.
* The Environmental Protection Agency can avoid its responsibilities under the Endangered Species Act, even though it’s a law reflecting the public will as passed by the democratically-elected Congress.
* Corporations can once again use their checkbooks to flood the public airwaves with political ads during election season, again overruling Congress.
It’s critical to recognize these decisions — along with earlier decisions to end privacy between a woman and her doctor, and to make it harder to challenge pay discrimination — are part of a pattern.
Because the battle for the Supreme Court is not over. As Justice Anthony Kennedy remains a swing vote, conservative activists do not have complete control. Yet.
Roberts and Alito were able to get on the Court because their dishonest PR operations went largely unchallenged. Roberts was christened “brilliant” and lauded as a lover of grammar. Alito was heralded as an “open-minded” judge who loves baseball and his mom.
All that was meaningless fluff intended to mask their conservative agenda.
We must remember how these nominees were misrepresented so they could get confirmed.
We must catalog the damage they did after being confirmed.
We must crystallize what the conservative activists are trying to achieve, and how it undermines what our founders wanted our judiciary to do.
If we do all that, the next time a conservative activist is being sold to the public, we can insist on proof that the nominee will uphold constitutional principles of representative government, not undermine those principles with elitist government.
And if we don’t get any proof, we can reject that nominee on the merits — that we cannot risk granting another lifetime appointment to someone who will not protect our constitution and our democracy.
More analysis from Tapped, The Carpetbagger Report, TalkLeft, and D-Day.

FLASHBACK — Samuel Alito: Hostility To Equality

In light of yesterday’s 5-4 Supreme Court rulinga disingenuous reading of law by Sam Alito. screwing over a woman suffering pay inequity and making it harder for others to challenge employment discrimination — it seems appropriate to republish LiberalOasis’ post from the day of Alito’s nomination for several reasons.
1) This was predictable, despite the attempts to claim that “brilliant” judges like Alito and John Roberts would objectively interpret the law.
2) It’s important to chronicle the damage being done by the increasingly conservative activist Court, so it will be easier to galvanize the public to protect the Court from the next conservative activist nominee.
3) It’s important to show how you can take a nominee’s record, build a factual narrative within 24 hours of a nomination, and properly define a nominee before the inevitable snow job at the Senate hearing.
Without further ado, from Oct. 31, 2005:

What’s Samuel Alito’s trademark? Hostility to equality.
The opinion that people will focus on the most was his desire to uphold a spousal notification provision in a PA abortion law that severely restricted reproductive freedom.
Most will look at his opinion to indicate opposition to Roe, and they should.
But fundamentally, it was an opinion that was dismissive of women’s independence.
The vast majority of married women already discuss abortion decisions with their husbands, they don’t need a law to force them to do so.
But there are situations where a married woman would not want to, such as when she is mired in an abusive relationship, or if the marriage is fraying and near its end.
And it is not our government’s place to tell a woman what to do in such situations, one way or the other.
As the Supreme Court determined in opposing Alito’s view: “For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision.”
Alito had callously shrugged off such concerns, saying “The plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected…”. Classy.
Alito’s hostiliy to equality goes beyond that one ruling.
He tried to make it easier for employers accused of sex discrimination to get the cases thrown out, saying that cases don’t automatically deserve to go to trial when employers make excuses for discrimination and plaintiffs cast doubt on them.
Similarly, he tried to protect Marriott Hotels when it was found to discriminate against an African-American employee.
The majority said Alito’s “position would immunize an employer … if the employer’s belief that it had selected the ‘best’ candidate, was the result of conscious racial bias.”
He sought the deny our democratically elected Congress the authority to have the Family Medical Leave Act apply to state government employees, arguing that there was no discrimination in employers’ sick leave policies.
(That’s a view that was overruled by the Supreme Court in an opinion written by Rehnquist. Yes, he’s to the Right of Rehnquist.)
Perhaps what’s most disturbing is his view that girls sexually abused at school by other students cannot take legal action against the school for failing to protect them.
For Sandra Day O’Connor to be replaced by a man who has been defined as “an activist conservatist judge [who] has looked to be creative in his conservatism” will be a huge step backwards.
For the sake of the American ideal of equal protection under the law, bring out the filibuster.

Conservative Judicial Activists Trash Women’s Privacy

Wednesday’s Supreme Court decision is not about an abortion procedure.
It’s about women’s health. It’s about privacy. And it’s about the conservative judicial activist movement.
The Supreme Court, thanks to its new conservative activists John Roberts and Sam Alito — who snowed far too many people into thinking they were moderates who respected the right to privacy and court precedents — overruled 35 years of precedent, declaring abortion restrictions do not have to include exceptions to protect the health of the woman.
Meaning that there no longer is privacy from government intervention in the woman-doctor relationship.
The conservative activists do not yet fully control the Court. Justice Anthony Kennedy remains a swing vote, even if he swung in the wrong direction today.
But this ruling is another reminder of what the conservative activists want.
They do not want representative government that protects everyone’s freedom to make their own personal moral decision.
They want elitist government that imposes their moral vision on everyone else.
A lot of folks went soft during the Roberts and Alito nomination. There will really be no excuse to roll over for the next conservative activist nominee.