The 10th Circuit Court of Appeals on Friday upheld the Clinton administration’s “roadless rule” affecting more than 50 million acres of National Forest lands. The decision overturned a 2008 ruling by a federal court in Wyoming, which had blocked enforcement of the rule.  

The U.S. Senate confirmed Elana Kagan as associate justice of the U.S. Supreme Court today on a 63-37 vote. As he did on the Judiciary Committee, Senator Chuck Grassley voted against confirmation. He explained his reasoning in more detail this week, and I’ve posted his prepared floor statement after the jump. It amuses me to see Grassley question Kagan’s “commitment to the Constitution and rule of law” when he is open to revising the clear, unambiguous meaning of the 14th Amendment because of current Republican views on immigration.

Last summer Grassley voted against confirming President Obama’s first Supreme Court nominee, Sonia Sotomayor. Before that, Grassley had never opposed confirming a president’s nominee for the high court.

Five Senate Republicans voted to confirm Kagan: Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana and Judd Gregg of New Hampshire. Ben Nelson of Nebraska was the only Democrat to vote no. In fact, NPR reported that Nelson just became the first Democrat to vote against a Democratic president’s Supreme Court nominee since Lyndon Johnson nominated Thurgood Marshall in 1967.

UPDATE: Senator Tom Harkin’s statement on the Kagan confirmation is after the jump.

How low will Terry Branstad go in his efforts to score political points on the immigration issue? Before the primary election, he exaggerated how much undocumented immigrants cost the state budget and said he wouldn’t offer their children in-state college tuition. Earlier this month, he called for new enforcement that would copy Arizona’s “show your papers” approach but (magic pony style) wouldn’t leave Iowa taxpayers footing the bill for immigrants jailed.

Now Branstad is grandstanding against the U.S. Supreme Court decision that allows children of undocumented immigrants to attend public schools. Speaking on Jan Mickelson’s conservative talk radio show on July 27, the Republican nominee for governor said, “I believe that we need to see that [ruling] overturned.”

Branstad is taking a fairly extreme position here. The Plyler v. Doe decision, which struck down a Texas statute denying public education to children of undocumented immigrants, has been settled law for nearly 30 years. (Not that I’d put it past the current activist right-wing Supreme Court majority to overturn longstanding precedent.)

I haven’t seen any Branstad campaign press release declaring that he wants to take public education away from illegal immigrants, so maybe he was cynically throwing a bone to Mickelson’s listening audience. Governor Chet Culver’s campaign manager Donn Stanley pointed out that during the 16 years Branstad was governor after Plyler v Doe took effect, “He never had the state Department of Education oppose that ruling.”

But what an indictment of Branstad’s “family values” if he was speaking sincerely on Mickelson’s show. He would tell children no, we’re not going to educate you, because your parents did something bad. Stanley told the Des Moines Register, “It also just seems that having these kids in school instead of on the street would be better for society […] Speaking generally, punishing children for what their parents do illegally is not a value the governor has.”

Branstad should answer two follow-up questions. First, if elected governor, would he try to pass a law denying education benefits to children of undocumented immigrants? Such a law would be challenged in court, perhaps creating an opportunity for the U.S. Supreme Court to revisit the issue.

Second, would Branstad take any other steps to restrict education opportunities for immigrant children? Republican attorney general candidate Brenna Findley recently told Mickelson that while Plyler v Doe applies to Iowa, she favored trying to “work with the Department of Education” to find ways our state could address this issue. Branstad talks up Findley everywhere he campaigns; would he work with her toward this end? Incidentally, even Findley didn’t go so far as to say that Plyler v Doe was wrongly decided and should be overturned.

UPDATE: Forgot to mention this part of the Des Moines Register article:

“Gov. Branstad believes that people who are here illegally should not receive taxpayer-funded benefits because it drains our budget and is an added expense to taxpayers,” Branstad campaign spokesman Tim Albrecht said. “We’re talking about those children here illegally. We’re not talking about those born here.”

I haven’t seen any statistics on the estimated number of children in Iowa who were brought to this country illegally, as opposed to native-born Iowa children of undocumented immigrants. Even if Branstad got his wish and the Supreme Court revised its thinking on this issue, it would be difficult to implement the kind of distinction Albrecht is talking about. Theoretically, you could have school district denying enrollment to older siblings while educating younger siblings who were born in Iowa.  

Chuck Grassley will vote no when the Senate Judiciary Committee takes up Elana Kagan’s nomination to the Supreme Court today, he announced today. In a statement, Grassley said Kagan “failed to answer directly” many questions asked during her confirmation hearings. Supreme Court nominees proposed by Republican presidents have likewise declined to answer certain questions in committee, but Grassley said “candid answers” were needed from Kagan because “she has no previous judicial experience.” I posted the full text of Grassley’s statement below. He also told Radio Iowa that Kagan won’t exercise “judicial restraint” and will “let her own private views enter in” as opposed to interpreting the law. (No word on whether he found Kagan to be “aggressive” or “obnoxious.”)

It’s rich to hear Republicans talk about judicial restraint when judicial activism has “become a defining feature of the Roberts Court’s unfolding legacy” (see also here).

Click here to watch a YouTube video of Grassley questioning Kagan during Judiciary Committee hearings in late June. Radio Iowa and Blog for Iowa summarized the exchanges between Grassley and Kagan, which covered guns rights and gay marriage, among other issues.

Grassley voted to confirm both of President Bill Clinton’s nominees for the Supreme Court as well as all judges nominated by Republican presidents Ronald Reagan, George H. W. Bush and George W. Bush. Some Iowa conservatives have been grumbling about Grassley in recent years, so perhaps that explains his opposition to confirming Sonia Sotomayor last year and now Kagan.

UPDATE: Media Matters compiled a list of “45 myths and falsehoods” about Kagan’s nomination.

SECOND UPDATE: The Judiciary Committee voted 13-6 to confirm Kagan. All committee Democrats and Republican Lindsey Graham of South Carolina voted yes.

“No one spent more time trying to beat President Obama than I did, except maybe Senator McCain,” Mr. Graham said Tuesday, referring to the 2008 presidential election and Senator John McCain  of Arizona, Mr. Obama’s Republican rival. “I missed my own election – I voted absentee. But I understood: we lost, President Obama won. The Constitution, in my view, puts a requirement on me not to replace my judgment for his.”

Mr. Graham said there were “100 reasons” he could vote against Ms. Kagan if he based his vote on her philosophy, which is at odds with his. But he said she met a time-honored standard for judicial nominees: whether they are qualified and of good character.

As a senator, Mr. Obama adopted a different standard, saying it was permissible to vote against a nominee based on judicial philosophy, not just qualifications. Mr. Graham said that approach undermined the judicial confirmation process, by making it more partisan.

“Something’s changing when it comes to the advice and consent clause,” he said. “Senator Obama was part of the problem, not part of the solution.”

THIRD UPDATE: The reaction from Grassley’s Democratic challenger Roxanne Conlin is after the jump.

Numerous media reported tonight that Monday morning, President Barack Obama will nominate his solicitor general, Elana Kagan, to the U.S. Supreme Court. The Above the Law blog saw several “clues” over the last few days that the president would pick Kagan.

I always expected Obama to choose corporate-friendly pro-choice moderate judges like President Bill Clinton’s appointees, Ruth Bader Ginsburg and Stephen Breyer. Instead, Obama is choosing a corporate-friendly pro-choice “blank slate.” Kagan is a lot less qualified than Sonia Sotomayor, whom Obama named to the high court last year. She probably will turn out to be more conservative than Justice John Paul Stevens, whom she will replace if confirmed.

Constitutional lawyer Glenn Greenwald laid out a devastating case against Kagan last month, and he supplemented that on Sunday with more links and commentary.

As far as I can tell, Obama gets two things out of this nomination: a chance to show off how “moderate” he is by enraging liberals, and a Supreme Court justice who will support any expansion of executive power begun under President George W. Bush and continued during the current administration.

If tonight’s reports are true, Obama is on the verge of making one of the biggest mistakes of his presidency. We may all pay for that decades into the future.

UPDATE: To be clear, I’m not advocating a progressive fight against confirming Kagan. That would be pointless and doomed to fail. I wish the president had named someone who would be a counter-weight to the four right-wing ideologues on the court, but not surprisingly, he chose a different course. I guess we’ll all have to hope that Lawrence Lessig is right about Kagan. Incidentally, I didn’t find Walter Dellinger’s case for her convincing; Greenwald decimated that piece here.

Meanwhile, we can count on conservatives to make idiotic arguments against Kagan. Media Matters previews and rebuts 15 “myths” about her nomination we’re likely to hear in the coming weeks.

SECOND UPDATE: Right on cue, the conservative National Review Online blog attacks Kagan’s “remoteness” from the average American because she did not learn to drive until her late 20s.

THIRD UPDATE: Democratic Senate candidate Tom Fiegen released the following statement regarding Kagan’s nomination:

“The President’s nomination of Ms. Kagan is an opportunity for our senior senator Chuck Grassley to either objectively advise and consent to the nomination or to bow to right wing forces in his party which took down Utah U.S. Senator Bob Bennett. Iowans will be watching to see whether Senator Grassley represents us or the most extreme wing of his own party.”

My money’s on “most extreme wing of his own party.” But at least this time Grassley will be able to remember why he voted against the president’s nominee.

FOURTH UPDATE: Oops, I forgot to post Grassley’s statement:

“A lifetime appointment requires a thorough vetting and I expect Elena Kagan to receive fair, respectful and deliberative consideration.  The Constitution gives the Senate a tremendous responsibility to carefully review the President’s nominees to the Supreme Court.   The Judiciary Committee must take time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences.  With no judicial experience, it becomes even more important that we ask thorough questions to determine that Ms. Kagan truly understands the constitutional role of a Supreme Court justice.”

Senator Tom Harkin released this statement:

“Elena Kagan is extremely qualified.  She has the intellect and experience necessary to serve on our nation’s highest Court and her stellar legal credentials have been recognized by liberal and conservative lawyers alike.  She clerked for two judges for whom I have enormous respect – Judge Abner Mikva and Justice Thurgood Marshall.  I am also encouraged that in this nomination, the President selected a candidate from outside of the Judiciary.  Elena Kagan is recognized as one of the leading legal educators in our country.  

“I am confident that, if confirmed, she will be an important voice on our Court for the rule of law and constitutional rights and values.  She will ensure equality and give proper effect to our most important statutes, such as the Americans with Disabilities Act and Civil Rights Act, so our most vulnerable citizens receive the fullest protections of the law.

“Elena Kagan’s nomination comes after a series of firsts in her career – first female Dean of Harvard Law School and first female Solicitor General – setting the stage for what may be only the fourth woman to serve on the Court in our history.”

MSNBC’s First Read reported today:

Per NBC’s Pete Williams and Savannah Guthrie, administration officials say at least eight names are on President Obama’s list of potential Supreme Court nominees. Six are women and two men. The names: U.S. Solicitor General Elena Kagan, Diane Wood of the 7th Circuit Court of Appeals, Merrick Garland of the DC Court of Appeals, Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm, former George Supreme Court Chief Judge Leah Ward Sears, Sidney Thomas of the 9th Circuit, and Harvard Law School Dean Martha Minow. Of these names, people outside the government but familiar with White House thinking say the serious contenders are Kagan, Wood, Garland, Napolitano, and Granholm. Guthrie adds that Obama is likely to meet next week with key senators to discuss the vacancy. Many of the new additions are about interest group appeasement. And note the growing concern in the liberal/progressive blogosphere about Kagan.

One person who doesn’t sound concerned about Kagan is Republican Senator Lindsey Graham of South Carolina:

“I like her,” he said, quickly adding, “and that might hurt her chances.”

Graham, whose support for Justice Sonia Sotomayor last summer was a turning point in her confirmation process, said he liked Kagan’s answers about national security and the president’s broad authority to detain enemy combatants when she was going through her own Senate confirmation.

Both of President Bill Clinton’s Supreme Court nominees had received a private stamp of approval from key Republican Senator Orrin Hatch. My hunch is that Graham’s kind words for Kagan help her chances with President Obama. He loves to position himself as a moderate between the left and the right.

What do you think?

UPDATE: Chris Bowers made the case for Sears here.

Supreme Court Justice John Paul Stevens has confirmed that he will retire this June, as court observers have anticipated for some time. According to the Washington Post,

Aides and Democrats close to the process named three people as likely front-runners for the job: Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post, and two appellate court judges, Diane Wood of Chicago and Merrick Garland of Washington.

I’m relieved to know that the Senate will be able to confirm Stevens’ successor while Democrats still have a sizable majority. We are likely to lose 3-8 Senate seats this November.

Whomever Obama appoints will probably get a lecture from Senator Chuck Grassley during confirmation hearings this summer. With any luck the person will turn out not to be “aggressive” and “obnoxious.”

Any comments or predictions about the upcoming Supreme Court nomination are welcome in this thread.

UPDATE: Chris Bowers makes the case for former Georgia Supreme Court Justice Leah Ward Sears.

Next week will mark the first anniversary of the Iowa Supreme Court’s ruling in Varnum v Brien. Seven justices unanimously concluded that the section of the Iowa Code enacted through our state’s Defense of Marriage Act violates the equal protection provision of the Iowa Constitution. Since the day that decision was announced, many Iowa Republicans have called for overturning the court’s ruling. Some have denied that county recorders were obliged to implement the ruling, or insisted that government officials may ignore a court’s opinion about the constitutionality of a law. Others have called on Iowans to vote against retaining justices who supposedly overreached their authority. For example, gubernatorial candidate Rod Roberts said last November,

“We need to send a message to the Iowa Supreme Court that they are accountable to the people of Iowa,” said Roberts, who has made restoring the role of the people in state government a centerpiece of his campaign. “The problem with judicial activism is that it thwarts the will of the legislature and of the people of Iowa.”

Now that Congress has approved a health insurance reform bill Republicans don’t like, some GOP politicians have decided judicial activism isn’t so bad after all. Gubernatorial candidate Bob Vander Plaats pledged to “invoke the Constitution’s 10th Amendment to protect Iowans from new federal mandates” on health care. Rod Roberts followed Vander Plaats’ lead:

Roberts said that if the federal government passes a nationalized health care plan that conflicts with the Roberts Amendment, as governor he will file a lawsuit in federal court against President Obama to have the plan struck down as a violation of Iowans’ Tenth Amendment rights. The Tenth Amendment to the U.S. Constitution provides that powers not delegated to the federal government (such as the regulation of health insurance) are reserved for the states.

Gubernatorial candidate Terry Branstad also supported the idea of using the courts to nullify the will of Congress: “Given the massive scope and effect of this [health insurance reform] bill, it is likely that various provisions will be challenged in the courts. Those challenges are both timely and appropriate.”

Any constitutional lawyer can tell you that the U.S. Supreme Court has long affirmed the power of Congress to regulate interstate commerce. Law professor Mark Hall explains in detail here why constitutional arguments against an individual mandate to purchase health insurance are wrong. As for the broader 10th amendment claim that the constitution doesn’t empower the federal government to regulate health insurance, Hall notes, “Congress has ample power and precedent through the Constitution’s ‘Commerce Clause’ to regulate just about any aspect of the national economy.”

Conservative legal scholar Eugene Volokh likewise does not find the constitutional arguments against health insurance reform convincing:

While I agree that the recent commerce clause cases hold that Congress may not regulate noneconomic activity, as such, they also state that Congress may reach otherwise unregulable conduct as part of an overarching regulatory scheme, where the regulation of such conduct is necessary and proper to the success of such scheme. In this case, the overall scheme would involve the regulation of “commerce” as the Supreme Court has defined it for several decades, as it would involve the regulation of health care markets. And the success of such a regulatory scheme would depend upon requiring all to participate. (Among other things, if health care reform requires insurers to issue insurance to all comers, and prohibits refusals for pre-existing conditions, then a mandate is necessary to prevent opportunistic behavior by individuals who simply wait to purchase insurance until they get sick.)

The U.S. Supreme Court could overrule the will of Congress on health insurance reform only by reversing several decades of precedent about the definition of commerce. That’s textbook “judicial activism,” but it’s ok with some Iowa Republicans if it achieves the political end they are seeking.

By the way, Vander Plaats claims that as governor, he could issue an executive order halting same-sex marriages in Iowa. I wonder if he also thinks President Barack Obama could issue an executive order overturning a possible Supreme Court ruling against health insurance reform.

UPDATE: Kevin Drum considers prospects for a lawsuit challenging the individual mandate to buy health insurance. He makes the same point about Congressional authority to regulate interstate commerce and adds,

What’s more, the penalties for not buying insurance are tax penalties, and if anything, Congress has even wider scope in the tax area than in the commerce area. The Supreme Court has frequently ruled that Congress can pass tax laws that essentially force people to do things that Congress doesn’t have the direct power to require.

[…]here’s the thing: if the Supreme Court decided to overturn decades of precedent and strike down the mandate even though Kevin Drum says they shouldn’t (hard to imagine, I know), the insurance industry will go ballistic. If they’re required to cover all comers, even those with expensive pre-existing conditions, then they have to have a mandate in order to get all the healthy people into the insurance pool too. So they would argue very persuasively that unless Congress figures out a fix, they’ll drive private insurers out of business in short order. And that, in turn, will almost certainly be enough incentive for both Democrats and Republicans to find a way to enforce a mandate by other means. If necessary, there are ways to rewrite the rules so that people aren’t literally required to get insurance, but are incentivized so strongly that nearly everyone will do it. As an example, Congress might pass a law making state Medicaid funding dependent on states passing laws requiring residents to buy insurance. Dependent funding is something Congress does routinely, and states don’t have any constitutional issues when it comes to requiring residents to buy insurance. They all do it with auto insurance and Massachusetts does it with health insurance.

Like Drum, I view these proposed legal challenges as Republican posturing rather than a serious threat to nullify the law Obama signed this morning.

Corporations already have too much control over American political discourse, and that problem will only get worse thanks to the U.S. Supreme Court’s ruling in the Citizens United case. Adam B posted excerpts from the decision and the dissents.

The SCOTUS blog posted the complete text of the ruling and linked to many reactions and commentaries.

Election law expert Richard Hasen concludes that the court just killed campaign finance reform:

It is time for everyone to drop all the talk about the Roberts court’s “judicial minimalism,” with Chief Justice Roberts as an “umpire” who just calls balls and strikes. Make no mistake, this is an activist court that is well on its way to recrafting constitutional law in its image. The best example of that is this morning’s transformative opinion in Citizens United v. FEC. Today the court struck down decades-old limits on corporate and union spending in elections (including judicial elections) and opened up our political system to a money free-for-all.

The Des Moines Register assessed the impact on Iowa law, suggesting that our state may not be able to continue to ban corporate campaign contributions. (I thought this ruling pertained to independent expenditures by corporations, not direct corporate donations to candidates.) Kathie Obradovich collected some comments from Iowa politicians. Democrats slammed the ruling–not that they’ve accomplished anything on campaign finance reform since taking power.

All in all, a depressing day for our sorry excuse for a democracy. Any relevant comments are welcome in this thread.

UPDATE: Representative Leonard Boswell has introduced a constitutional amendment to overturn this ruling:

“I have introduced this important legislation because the Supreme Court’s ruling strikes at the very core of democracy in the United States by inflating the speech rights of large, faceless corporations to the same level of hard-working, every day Americans,” Boswell said in a statement. “The court’s elevation of corporate speech inevitably overpowers the speech and interests of human citizens who do not have the coffers to speak as loudly.”

Boswell said House Joint Resolution 68 would disallow a corporation or labor organization from using any operating funds or any other funds from its general treasury to pay for an advertisement in connection with a federal election campaign, regardless of whether or not the advertisement expressly advocates the election or defeat of a specified candidate.

“Corporations already have an active role in American political discourse through million-dollar political action committees and personal donations to campaigns,” Boswell said. “The legislation I introduced will prevent the Wall Street corporations that received billions in taxpayer bailout dollars from turning around and pouring that same money into candidates that will prevent financial regulation on their industry. No American should have to turn on the TV and see AIG telling them how to vote.”

The Senate confirmed Sonia Sotomayor as an associate justice of the U.S. Supreme Court today by a vote of 68 to 31. As expected, Iowa’s senators split, with Tom Harkin voting yes and Chuck Grassley voting no.

Nine Republicans voted to confirm Sotomayor: Susan Collins and Olympia Snowe of Maine, Judd Gregg of New Hampshire, Richard Lugar of Indiana, Lindsey Graham of South Carolina, Lamar Alexander of Tennessee, Mel Martinez of Florida, George Voinovich of Ohio, and Kit Bond of Missouri. Bond, Gregg, Martinez and Voinovich have already announced plans to retire in 2010.

Senator Robert Menendez of New Jersey warned yesterday that the GOP will pay a political price for opposing Sotomayor.

The two independents who caucus with Democrats (Joe Lieberman of Connecticut and Bernie Sanders of Vermont) supported Sotomayor, as did all Senate Democrats who were present today (Ted Kennedy was absent). That’s a blow to Republicans, who had hoped that getting the National Rifle Association to make Sotomayor’s confirmation a scorecard issue would frighten a few gun-friendly Democrats into voting no. That would have changed the media narrative into “Democrats and Republicans divided over Sotomayor as she joins the Supreme Court.”

Although Max Baucus of Montana flirted with voting no on Sotomayor, he came around fairly quickly. I liked this comment from pro-gun Democrat Mark Warner of Virginia:

“I’m very disappointed. [NRA seems] to be going beyond their Second Amendment issues, particularly when I think the judge’s positions on those issues are still fairly open,” Warner said. “I trust in her judgment and temperament. I think the NRA at some point has gone beyond its mission, and are perhaps allowing themselves to get hijacked by those who are in the extreme.”

That hijacking occurred long ago.

Share any thoughts about Justice Sotomayor or the Supreme Court in this thread. I want to again express my gratitude to Justice John Paul Stevens for staying healthy all these years and to Justice David Souter for sticking it out long after he wanted to retire.

Now that Republicans have shown that they will largely oppose even a moderate, corporate-friendly judge like Sotomayor, I would like to see Obama nominate a fire-breathing liberal the next time a Supreme Court vacancy comes up.

Senator Chuck Grassley’s office announced today that he will vote against confirming Judge Sonia Sotomayor as an associate justice of the U.S. Supreme Court. I’ve posted Grassley’s statement after the jump. The gist is, he acknowledges Sotomayor’s “credentials on paper” but has unanswered questions about her judicial philosophy. He doesn’t trust her to apply the law without regard for her “personal biases and prejudices.” He also disliked “her lack of clear and direct answers to simple questions regarding the Constitution” during her confirmation hearings. For the last 20 years, Supreme Court nominees have tried to avoid answering specific questions about issues that are likely to come before the court.

Grassley’s opening statement during Sotomayor’s confirmation hearings expressed concern about some of her speeches, including the infamous “wise Latina” remark. He had some contentious exchanges with the judge in subsequent days.

Grassley voted against confirming Judge Sotomayor for the U.S. Court of Appeals in 1998, but he said last month that he could not remember why.

Most Senate Republicans plan to vote against Sotomayor, but at least five have said they will support her confirmation: Richard Lugar of Indiana, Mel Martinez of Florida, Susan Collins and Olympia Snowe of Maine, and Lindsey Graham of South Carolina.

UPDATE: Iowa Democratic Party chairman Michael Kiernan’s statement is also after the jump.

LATE UPDATE: The Senate Judiciary Committee voted 13-6 on Tuesday to confirm Sotomayor, sending her nomination to the full Senate.

Judge Sonia Sotomayor’s confirmation hearings ended today. I hardly watched any of it on tv, but I got the highlights from David Waldman’s liveblogging at Congress Matters: Wednesday morning session, Wednesday afternoon session, Thursday morning session, and Thursday afternoon session.

On Wednesday Senator Chuck Grassley had a contentious exchange with Judge Sotomayor regarding a 1972 case on same-sex marriage. Tom Beaumont posted the transcript at the Des Moines Register site. Sotomayor read the case last night and answered more questions from Grassley about it today. I posted an excerpt from the transcript after the jump.

According to MSNBC reporter Norah O’Donnell, Grassley told her today that his constituents are “pretty unanimous against her,” referring to Sotomayor. On what basis can he make that claim? I don’t doubt that wingnuts have been working his phone lines, but I hope he doesn’t expect anyone to believe that Iowans overwhelmingly oppose the confirmation of this extremely intelligent and qualified judge.

Questioning of Sotomayor concluded this morning, and outside witnesses testified this afternoon. Republicans brought in New Haven firefighter Frank Ricci. His story has become a focal point for opponents of Sotomayor, because the Supreme Court recently found in his favor in a 5-4 decision that overruled a 2nd Circuit Court of Appeals decision involving Sotomayor. (Of course, Sotomayor’s critics don’t acknowledge the bigger picture of her rulings in race-related cases.)

It turns out that Ricci’s quite the veteran of employment lawsuits. He sued the city of New Haven in 1995, claiming that he was discriminated against because of his dyslexia, in violation of the Americans with Disabilities Act. Ricci also went to court to fight his 1998 dismissal from Middletown’s South Fire District. TPM-DC’s Brian Beutler observed,

[Ricci’s] views on jurisprudence seem to begin and end with the proposition that legal protections against discrimination are great when they work in his favor, and unconscionable when they don’t.

I don’t have a problem with people defending their rights in court, but Ricci was hardly the reluctant litigant some conservatives have made him out to be. Also, it’s worth noting that whether or not Ricci was treated unfairly, the position Sotomayor took in the Ricci case

is an act of judicial restraint. The Second Circuit panel, which included Judge Sonia Sotomayor, deferred to a decision of the elected officials of the City of New Haven. Whether the decision was correct or incorrect, it was decidedly the opposite of judicial activism.

In fact, the five conservative Supreme Court judges who overturned the lower court ruling in Ricci were engaging in judicial activism.

Share any thoughts about the confirmation process in this thread. How many Republicans on the Senate Judiciary Committee will vote to confirm Sotomayor?

UPDATE: MyDD user bruh3 has a good response to Grassley’s line of questioning on that 1972 decision. and it’s just a guess, is that Grassley has been hearing from a lot of evangelicals about gay marriage in recent months. They were already mad at him last year for questioning the tax-exempt status of some televangelists. Then Grassley’s reaction to the Varnum v Brien decision was found wanting by many Iowa social conservatives. I suspect he wanted to make a show of grilling Judge Sotomayor on this issue.

I only watched a small part of Judge Sonia Sotomayor’s confirmation hearings today. I lost patience after 10 or 15 minutes of Senator Orrin Hatch asking the same questions over and over, even though she’d answered them the first time.

David Waldman liveblogged the hearings for Congress Matters. Click here for the morning session and here for the afternoon session. Waldman provided a bonus post with video of one low point: “Jefferson Beauregard Sessions III, complete with his best Foghorn Leghorn stammer, reaches astonishing new levels of asshattery.”

Talking Points Memo compared Senator Lindsey Graham’s aggressive questioning today with his “obsequious” use of his time for questioning Judge Sam Alito. In 2006,

[Graham] took his allotted time as an opportunity to apologize to Mrs. Alito, who was upset by what was perceived to be overly tough questioning of her husband […].

Click here for video clips of Graham.

I read that Senator Chuck Grassley got a laugh out of the room in a strange way. An anti-abortion heckler disrupted the hearings during Grassley’s questioning time. After the man had been escorted from the room, Grassley said, “People always say I have the ability to turn people on.” It reminded me of Grassley’s somewhat off-color remark to Senator Kent Conrad during a Budget Committee meeting in March.

This thread is for any comments about Tuesday’s hearings or Judge Sotomayor’s confirmation in general.

UPDATE: Hilarious diary by Daily Kos user Upper West on “Sotomayor’s Woody Allen/Marshall McLuhan Moment.”

UPDATE: Sotomayor discussed her judicial philosophy in her opening statement to the committee. Talking Points Memo posted excerpts from all the senators’ opening statements.

The Senate Judiciary Committee began Judge Sonia Sotomayor’s confirmation hearings today, and Radio Iowa has Senator Chuck Grassley’s opening statement. He gave quite the lecture about “judicial restraint” as opposed to “President Obama’s ’empathy’ standard.”

An excerpt is after the jump, along with some analysis of Grassley’s selective concern about empathy and so-called activist judges.

I found some unintentional comedy in this AP story on Judge Sonia Sotomayor’s one-on-one meetings with senators:

Sotomayor has managed to disarm even senators who came prepared not to like her. Sen. Charles E. Grassley, an Iowa Republican, went in thinking “she would be aggressive and maybe even a little obnoxious.”

“I would classify her as kind of much friendlier … more reserved, less aggressive,” than he expected, Grassley told reporters later.

I wonder why Grassley thought Sotomayor would be “aggressive and maybe even a little obnoxious.” Would he expect that of any high-achieving Puerto Rican woman from New York, or only one who had been on the receiving end of a hatchet job in The New Republic? Or maybe he was taken in by right-wing commentators’ caricatures of Sotomayor.

Anyway, it’s safe to say that Sotomayor’s personality wasn’t the reason Grassley voted against her confirmation to the 2nd Circuit Court of Appeals. He’ll have to keep trying to remember why he cast that vote in 1998.

By the way, the Democrat who’s running against Grassley next year, Bob Krause, has his campaign website up and is on Twitter @KrauseForIowa. He plans to campaign hard against Grassley’s opposition to universal health care with a public option.

A few thoughts came to mind when I read about the U.S. Supreme Court’s ruling in Caperton v. Massey this week. The case involved a West Virginia Supreme Court judge who refused to recuse himself from a trial, even though the chief executive of one of the litigants had spent $3 million to help the judge get elected. In a 5-4 ruling, the Supreme Court found that due process requires a judge to recuse himself if large campaign contributions create the appearance of partiality.

Like Scarecrow at the Oxdown Gazette, I found the hackery of Chief Justice John Roberts’ dissenting opinion revealing.

Mostly I was shocked to learn from this New York Times article that judges are still elected in 39 states. It’s bad enough that money corrupts our elections for the legislative and executive branches. Judicial elections create opportunities for “legalized bribery” as well as incentives for judges to let public opinion unduly shape their interpretation of the law in high-profile cases.  

I agree with the Des Moines Register’s editorial board:

The fact that it is difficult, if not impossible, to draw an ethical distinction between a bribe and a campaign contribution is a strong argument for why judges should not be elected. Period.

Iowa voters did away with judicial elections by approving an amendment to the state constitution in 1962. The governor appoints judges at all levels. The public has input through nominating commissions that evaluate potential appointees before forwarding a short list to the governor. In addition, judges can be removed either by the Iowa Supreme Court for disability or good cause, or by the voters through periodic retention elections.

We are fortunate that Iowans recognized the wisdom of scrapping judicial elections when the constitutional amendment was on the ballot. This page on the website of the American Judicature Society lists failed judicial reform efforts in numerous other states. As you can see, state legislators and voters have rejected similar proposals despite years of hard work by reform advocates.

Let this be a lesson for policy-makers at all levels to seize the chance to make big changes for the better, such as the currently favorable environment for health care reform. Opportunities to ditch deeply flawed but entrenched systems don’t come around every year, every election cycle or even every decade.

I got a chuckle out of Thomas Beaumont’s article in today’s Des Moines Register, “Reason for vote against judge still eludes Grassley”:

Iowa Sen. Charles Grassley said Wednesday he still cannot recall why he opposed Sonia Sotomayor’s confirmation to a federal appeals court judgeship 11 years ago, even after searching the Congressional Record for answers. […]

“I want to know why myself. I probably want to know why more than you want to know why,” Grassley told reporters Wednesday when pressed to explain his past votes against Sotomayor.

“But we’ve looked in the record of the committee and the Congressional Record and there’s no statement by me. So, I don’t know why,” he added.

Grassley was one of three Republicans on the Senate Judiciary Committee and 29 in the Senate to vote against Sotomayor’s confirmation to the 2nd U.S. Court of Appeals in New York.

Grassley’s memory lapse prompted me to search for reports on the reasons some Senate Republicans opposed Sotomayor in 1998. I could not find any articles discussing controversial decisions she had made as a district court judge.

I also learned that Sotomayor gave a speech in 1994 containing a statement about a “wise woman” that is similar to her 2001 remark that conservative commentators have been flogging. Greg Sargent reported that “though the 1994 speech was disclosed to Republican Senators as part of her confirmation for Court of Appeals in 1998, there’s no sign that anyone objected to it in any way.”

So, why did Grassley and 28 other Republican Senators vote against Sotomayor in 1998? My hunch is that the reason Grassley didn’t enter a speech into the Congressional Record at the time is the same reason I can’t find any reporting on the grounds for opposition to her: Republicans had no legitimate beef with her qualifications or her judicial rulings.

An article by Paul West of the Baltimore Sun supports my hypothesis:

President Bill Clinton’s 1997 nomination of Sotomayor to the nation’s second highest court was held up for a year by Senate Republican blocking tactics. At the time, analysts said that Republicans did not want her confirmation to go forward because it would put her in line for a Supreme Court seat.

That’s the kind of reason I’d want to forget too if I were Grassley.

Senate Republicans used similar blocking tactics against many of Clinton’s nominees, hoping to run out the clock on his presidency. They later complained about Democratic “obstruction” of judicial appointments, but at least Democrats gave reasons for opposing the worst George W. Bush nominees (for instance, judicial philosophy or specific decisions as lower-court judges).

To his credit, Grassley told reporters on yesterday’s call that he is going into Judge Sotomayor’s upcoming confirmation hearings with an open mind. Not that it matters, because Senate Republicans already know that they don’t have the votes to block her elevation to the Supreme Court.

If all you knew about 2nd Circuit U.S. Appeals Court Judge Sonia Sotomayor came from conservative commentators, you would think Barack Obama had nominated a far-left reverse racist for the Supreme Court. A typically unhinged assessment by Iowa’s own Ted Sporer, chairman of the Polk County Republican Party, is titled “The Supreme Court pick: Justice denied, racism and sexism exalted.” Like most conservatives who are freaking out, Sporer is reacting to one quotation from a speech Sotomayor gave in 2001:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

Conservative commentator Rod Dreher read the whole speech and concluded on Wednesday, “seeing her controversial comment in its larger context makes it look a lot less provocative and troubling.” However, the right-wing noise machine continues to sound the alarm about Sotomayor’s alleged radical, racist agenda.

You won’t be surprised to learn that people who have examined her judicial record (as opposed to one sentence from one speech) have reached substantially different conclusions. Some reality-based links are after the jump.

The big news of the day is that President Barack Obama nominated U.S. Second Circuit Court of Appeals Judge Sonia Sotomayor for the Supreme Court. If confirmed, she would be the third woman to serve on the high court and the first Hispanic justice of either gender.

Sotomayor reportedly sealed the deal during her interview with the president last Thursday.

Deoliver47 has more background and video clips in this post.

Senate Republicans will try to drag out the confirmation process, but there will be no long-term vacancy on the high court. Justice David Souter has made clear that he will retire once his replacement is confirmed.

I don’t know a lot about Sotomayor, but I look forward to learning more. She has the qualities I wanted to see in a Supreme Court nominee, even if she is not as progressive as I would like. Tom Goldstein of the SCOTUS blog previewed arguments for and against her nomination. Excerpt:

Objectively, her qualifications are overwhelming from the perspective of ordinary Americans.  She has been a prosecutor, private litigator, trial judge, and appellate judge.  No one currently on the Court has that complete package of experience.

On the other hand, this criminal defense attorney who has argued cases before her court isn’t too impressed.

On principle, I am glad that a hit piece on Sotomayor filled with anonymous quotes did not derail her nomination. More on that hit piece is here.

Before I open the floor for comments, here’s some Supreme Court-related humor from The Onion.

What do you think of Obama’s choice?

UPDATE: Greg Sargent points out that “Seven Republicans currently in the Senate voted for the appointment of Sonia Sotomayor in 1998 as U.S. Circuit Court judge[…].” That’s not counting Arlen Specter, who also voted to confirm her in 1998 but is no longer a Republican.

SECOND UPDATE: Sports fans may remember that as a U.S. district court judge, Sotomayor ended the baseball strike in 1995.

THIRD UPDATE: Senator Chuck Grassley released this statement:

“A lifetime appointment requires a thorough vetting, and I expect Judge Sotomayor to receive fair and deliberative consideration.  The United States Senate has a responsibility to carefully review nominees to the Supreme Court.   The Judiciary Committee should take time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences.  We need to ask tough questions to learn how this individual views the role of a Supreme Court justice.  The last 25 years of Senate review of nominees has been entirely different than the first 200 years, and today the Senate can’t just be a rubber stamp for President Obama’s nominees.”

Grassley is incorrect to imply that the Senate has been a rubber stamp of Supreme Court nominees for most of this country’s history. During the 19th century, the Senate rejected approximately one fourth of the presidential nominees for this office.

Here’s a list of failed nominations to the U.S. Supreme Court.

Lynda Waddington posted an interesting story at Iowa Independent about a unanimous U.S. Supreme Court ruling announced yesterday. The decision may become an issue at confirmation hearings if President Barack Obama takes Senator Tom Harkin’s advice and nominates Stephanie Rose for U.S. attorney in Iowa’s Northern District.

More on this story is after the jump.

President Barack Obama will get his first chance to appoint a Supreme Court justice this year because of Justice David Souter’s plans to retire. Here is my wish list:

1. Obama should leave no opening to question whether his nominee is qualified for the Supreme Court. The easiest way to accomplish this would be for Obama to elevate one of the many good judges Bill Clinton appointed, who now have a decade or more of experience in the federal court sytem.

2. Among the highly qualified candidates, Obama should pick someone who is not a white male. Normally I detest identity politics, but this is the exception that proves the rule. Only two white women have ever served on the U.S. Supreme Court. Only two black men have ever served on the court. No Latino or Asian men or women have served on the court. It’s not a question of picking someone less qualified. I assume that approximately 200 Americans are qualified for this job, and many people with superb credentials are not white males. Some of them are mentioned here.

3. I don’t want Obama to use this opportunity to prove how bipartisan he is by nominating some middle-of-the-road judge. George Bush’s extreme right-wing nominees, John Roberts and Samuel Alito, need to be balanced. I am not saying Obama should pick a radical left-winger, but he should pick someone better than “centrist.”

4. On a related note, I would like to see someone to help move the Supreme Court away from its current pro-corporate bias. Clinton’s appointees were quite corporate-friendly, especially Steven Breyer. Bush’s appointees were extremely hostile to the rights of workers and environmental concers. I want someone who will bring some balance to the court.

5. Mr. desmoinesdem adds that Obama should pick someone with expertise in criminal law. None of the current justices had that background when they were appointed, but the Supreme Court hears many criminal law cases. I would assume that any judge with a decade of experience in the federal court system would be sufficiently familiar with criminal law.

I am confident that Obama will pick someone qualified. I am reasonably confident he will pick someone who is not a white male. I am less optimistic about whether he will pick a liberal. Given the economic team Obama has assembled, I am pessimistic about the chances for him to pick someone with less of a pro-corporate bias.

What do you think?

Todd Beeton spoke for many when he wrote last night,

Dear Justice Souter,

Thank you for waiting.

Thank you.

I’m grateful to Justice John Paul Stevens, but in some ways Souter deserves our thanks more, because for the last eight years he put his own preferences aside for the sake of the public interest.  

After the jump I’ve posted an excerpt Mr. desmoinesdem showed me from Jeffrey Toobin’s book The Nine: Inside the Secret World of the Supreme Court. It describes how Souter was “shattered” by the majority’s ruling in Bush v. Gore.