Obama vs. Holder

Obama vs. Holder. By Stephen F. Hayes

The Weekly Standard, February 3, 2010 3:45 PM

In an interview with 60 Minutes last spring, President Obama discussed the handling of captured terrorists and challenged those who claimed the "American system of justice was not up to the task of dealing with these terrorists."

Obama said: "I fundamentally disagree with that. Now -- do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter -- down the block? Of course not." President Obama ought to call Attorney General Eric Holder.  In a five-page letter to Senator Mitch McConnell, Holder lays out in exhaustive detail exactly why these folks deserve Miranda rights and why his Justice Department will treat them like a shoplifter down the block.

Holder's letter responds to criticism of the Obama administration's handling of Umar Farouk Abdulmutallab, the Christmas Day bomber, from McConnell and other Republicans. Holder writes:

The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.
I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab's actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.

Nobody doubts that Abdulmutallab can be prosecuted. There were nearly three hundred people on the plane when he tried to blow it up. He lit himself on fire. Authories gathered his badly burned underpants and the components of the bomb. His prosecution was never seriously in question, which is precisely what makes the decision to Mirandize him quickly so outrageous.

But Holder's second claim is false. Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation -- questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a "clean team," brought in to interrogate him after he was read his Miranda rights. The previous interrogation, while potentially helpful in obtaining intelligence, was "dirty" because he had not yet been Mirandized and thus unusable in his prosecution.  The "clean team" began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

Does Holder really mean to suggest that the U.S. government would not have obtained more -- and better -- intelligence if the FBI had continued to interrogate him on Christmas Day?

The U.S. intelligence community had put together a dossier of the intelligence collected on Abdulmutallab in the six months prior to the Christmas Day attack. The FBI interrogators did not have access to this information when they questioned him.  Does Holder believe that there was nothing more to be learned by using this information?  Holder argues that the FBI and Justice Department officials "did precisely what they are trained to do, what their policies require them to do, and what this nation expects them to do."

Holder's predecessor, Attorney General Mike Mukasey, disagrees.  "Holding Abdulmutallab for a time in military custody, regardless of where he is ultimately to be charged, would have been entirely lawful—even in the view of the current administration, which has taken the position that it needs no further legislative authority to hold dangerous detainees even for a lengthy period in the United States," Mukasey wrote in the Wall Street Journal on January 7. "Then we could decide at relative leisure where to charge him—whether before a military commission or before a civilian court."

It's certainly cause for concern that Holder either does not recognize or will not admit the many mistakes in the handling of Abdulmutallab. But what's more disturbing is the fact that he is committed to handling future terrorists -- regardless of who they are or what danger the present -- in precisely the same manner.

"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear," according to Holder. He also writes that the law and FBI policy require providing "Miranda warnings prior to any custodial interrogation conducted inside the United States," unless a "public safety" exception is permitted.  (To make his point on a public safety exception, Holder uses the example of someone who has committed an armed offense that compels authorities to ask about the location of the gun.)  Holder further argues that "there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney."

Follow that logic.  If Holder is correct, the FBI could pick up al Qaeda's chief of operations in, say, Tampa, Florida, and unless he met the criteria for a public safety exception (i.e. had a gun), the FBI would be required to Mirandize him immediately and give him a lawyer. So someone with detailed and intimate knowledge of al Qaeda -- its leaders, its finances, its recruitment, its training and, yes, its future operations -- would be told he has the right to remain silent and provided counsel.

Holder seems to understand that this is a problem.  So his letter seeks to reassure: "While in some cases defense counsel may advise their clients to remain silent, there are situations in which they properly and wisely encourage cooperation because it is in their client's best interest, given the substantial sentences they might face."

Thank goodness.

It's no wonder that Holder couldn't answer Lindsey Graham's question at a hearing last fall about whether the U.S. government would be required to Mirandize Osama bin Laden if he were captured.  Holder's answer: "That all depends." Because if bin Laden were apprehended in the United States -- to take the logic to absurd lengths -- the FBI would read him his rights and get him a lawyer.

So what about Obama's words to 60 Minutes last spring.  "Do these folks deserve Miranda rights? Do they deserve to be treated like a shoplifter-- down the block?"
The president said: "Of course not." His attorney general says: "Yes."

Health Experts and Double Standards - Jonathan Gruber, Peter Orszag and the press corps

Health Experts and Double Standards. WSJ Editorial
Jonathan Gruber, Peter Orszag and the press corps.
The Wall Street Journal, page A18, Jan 14, 2010

The press corps is agonizing, or claims to be agonizing, over the news of Jonathan Gruber's conflict of interest: The MIT economist has been among the foremost promoters of ObamaCare—even as he had nearly $400,000 in consulting contracts with the Administration that weren't disclosed in the many stories in which he was cited as an independent authority.

Mr. Gruber is a health economist and former Clinton Treasury hand, as well an architect of Mitt Romney's 2006 health plan in Massachusetts that so closely resembles ObamaCare. His econometric health-care modelling is well-regarded. So his $297,600 plum from the Department of Health and Human Services in March for "technical assistance" estimating changes in insurance costs and coverage under ObamaCare, plus another $95,000 job, is at least defensible.

However, this financial relationship only came to wide notice when Mr. Gruber wrote a commentary for the New England Journal of Medicine, which has a more stringent disclosure policy than most media outlets. Last week the New York Times said it would have disclosed Mr. Gruber's financial ties had it known when it published one of his op-eds last year. Mr. Gruber told Politico's Ben Smith that "at no time have I publicly advocated a position that I did not firmly believe—indeed, I have been completely consistent with my academic track record."

We don't doubt Mr. Gruber's sincerity about his research, though the same benefit of the political doubt wasn't extended to, say, Armstrong Williams when it was revealed that the conservative pundit had a contract with the Department of Education during the No Child Left Behind debate. Any number of former Generals-turned-TV-analysts were skewered in the New York Times in 2008 merely because of continuing contact—and no financial ties—with the Pentagon.

The political exploitation of Mr. Gruber's commentary is another matter. His work figured heavily into a recent piece by Ron Brownstein in the Atlantic Monthly that the Administration promoted as an antidote to skepticism about ObamaCare's cost control (or lack thereof). White House budget director Peter Orszag has also relied on a letter from Mr. Gruber and other economists endorsing the Senate bill.

In a December conference call with reporters, Mr. Orszag said that "I agree with Jon Gruber that basically everything that has been put forward in health policy discussions for a decade is in this bill." He also praised "the folks who have actually done the reporting and read the bill and gone through and done the hard work to actually examine, rather than just going on buzz and sort of loose talk, but actually gone through and looked at the specific details in the bill," citing Mr. Brownstein in particular. Which is to say, the journalists who had "done the reporting" were those who agreed with the Gruber-White House spin.

Mr. Orszag never mentioned Mr. Gruber's contract. Nor did HHS disclose the contract when Mike Enzi, the ranking Republican on the Senate health committee, asked specifically for a list of all consultants as part of routine oversight in July. His request noted that "Transparency regarding these positions will help ensure that the public has confidence in the qualifications, character and abilities of individuals serving in these positions."

We're not Marxists who think everyone's opinion depends entirely on financial circumstances. But if Mr. Gruber qualifies as a health expert despite his self-interest, then the studies of self-interested businesses deserve at least as much media attention. The insurer WellPoint has built a very detailed and rigorous model on the likely impact of ObamaCare, using its own actuarial data in regional markets, and found that insurance costs will spike across the board. The White House trashed it, and the press corps ignored it.

This is a double standard that has corroded much of the coverage of ObamaCare, with journalists treating government claims as oracular but business arguments as self-serving. We'll bet Messrs. Orszag and Brownstein that WellPoint's analysis will more closely reflect the coming insurance reality than the fruits of Mr. Gruber's government paycheck.

The Chamber of Commerce is only the latest target of the Chicago Gang in the White House

The Chicago Way. By KIMBERLEY A. STRASSEL
The Chamber of Commerce is only the latest target of the Chicago Gang in the White House.
WSJ, Oct 23, 2009

They pull a knife, you pull a gun. He sends one of yours to the hospital, you send one of his to the morgue. That's the Chicago way.

–Jim Malone,
"The Untouchables"

When Barack Obama promised to deliver "a new kind of politics" to Washington, most folk didn't picture Rahm Emanuel with a baseball bat. These days, the capital would make David Mamet, who wrote Malone's memorable movie dialogue, proud.

A White House set on kneecapping its opponents isn't, of course, entirely new. (See: Nixon) What is a little novel is the public and bare-knuckle way in which the Obama team is waging these campaigns against the other side.

In recent weeks the Windy City gang added a new name to their list of societal offenders: the Chamber of Commerce. For the cheek of disagreeing with Democrats on climate and financial regulation, it was reported the Oval Office will neuter the business lobby. Obama adviser Valerie Jarrett slammed the outfit as "old school," and warned CEOs they'd be wise to seek better protection.

That was after the president accused the business lobby of false advertising. And that recent black eye for the Chamber (when several companies, all with Democratic ties, quit in a huff)—think that happened on its own? ("Somebody messes with me, I'm gonna mess with him! Somebody steals from me, I'm gonna say you stole. Not talk to him for spitting on the sidewalk. Understand!?")

The Chamber can at least take comfort in crowds. Who isn't on the business end of the White House's sawed-off shotgun? First up were Chrysler bondholders who—upon balking at a White House deal that rewarded only unions—were privately threatened and then publicly excoriated by the president.

Next, every pharmaceutical, hospital and insurance executive in the nation was held out as a prime obstacle to health-care nirvana. And that was their reward for cooperating. When Humana warned customers about cuts to Medicare under "reform," the White House didn't bother to complain. They went straight for the gag order. When the insurance industry criticized the Baucus health bill, the response was this week's bill to strip them of their federal antitrust immunity. ("I want you to find this nancy-boy . . . I want him dead! I want his family dead! I want his house burned to the ground!")

This summer Arizona Sen. Jon Kyl criticized stimulus dollars. Obama cabinet secretaries sent letters to Arizona Gov. Jan Brewer. One read: "if you prefer to forfeit the money we are making available to the state, as Senator Kyl suggests," let us know. The Arizona Republic wrote: "Let's not mince words here: The White House is intent on shutting Kyl up . . . using whatever means necessary." When Sens. Robert Bennett and Lamar Alexander took issue with the administration's czars, the White House singled them out, by name, on its blog. Sen. Alexander was annoyed enough to take to the floor this week to warn the White House off an "enemies list."

House Minority Whip Eric Cantor? Targeted for the sin of being a up-and-coming conservative voice. Though even Mr. Cantor was shoved aside in August so the Chicago gang could target at least seven Democratic senators, via the president's campaign arm, Organizing for America, for not doing more on health care. ("What I'm saying is: What are you prepared to do??!!")

And don't forget Fox News Channel ("nothing but a lot of talk and a badge!"). Fox, like MSNBC, has its share of commentators. But according to Obama Communications Director Anita Dunn, the entire network is "opinion journalism masquerading as news." Many previous White House press officers, when faced with criticism, try this thing called outreach. The Chicago crowd has boycotted Fox altogether.

What makes these efforts notable is that they are not the lashing out of a frustrated political operation. They are calculated campaigns, designed to create bogeymen, to divide the opposition, to frighten players into compliance. The White House sees a once-in-a-generation opportunity on health care and climate. It is obsessed with winning these near-term battles, and will take no prisoners. It knows that CEOs are easily intimidated and (Fox News ratings aside) it is getting some of its way. Besides, roughing up conservatives gives the liberal blogosphere something to write about besides Guantanamo.

The Oval Office might be more concerned with the long term. It is 10 months in; more than three long years to go. The strategy to play dirty now and triangulate later is risky. One day, say when immigration reform comes due, the Chamber might come in handy. That is if the Chamber isn't too far gone.

White House targets also aren't dopes. The corporate community is realizing that playing nice doesn't guarantee safety. The health executives signed up for reform, only to remain the president's political piñatas. It surely grates that the unions—now running their own ads against ObamaCare—haven't been targeted. If the choice is cooperate and get nailed, or oppose and possibly win, some might take that bet.

There's also the little fact that many Americans voted for this president in thrall to his vow to bring the country together. It's hard to do that amid gunfire, and voters might just notice.
("I do not approve of your methods! Yeah, well . . . You're not from Chicago.")

WaPo Editorial: Mr. Paulson on the Hot Seat - A congressional inquiry into the financial crisis and bailout ignores what went right

Mr. Paulson on the Hot Seat. WaPo Editorial
A congressional inquiry into the financial crisis and bailout ignores what went right.
Friday, July 17, 2009

HERE, MORE or less, is the state of the U.S. financial system as we enter the second half of 2009: The top 20 U.S. banks -- once thought to be insolvent and possibly in need of nationalization -- have survived a government stress test and begun raising private capital. The three-month London Interbank Offered Rate, which rises when banks are illiquid, has declined steadily since March. Several recipients of government bailout funds have repaid them. The Treasury Department felt confident enough of the system's soundness to deny further help this week to CIT Group, a previous recipient of bailout money.

All of this good news must be marked "tentative," of course, for the simple reason that the banks are floating on a sea of government-supplied liquidity, in the form of a near-zero Federal Reserve target rate, open-ended Treasury support to Fannie Mae and Freddie Mac, and multiple government credit guarantees. This is far from a self-sustaining recovery, and a new shock could push the system back to the brink. But all things considered, we could be doing much worse.

Under the circumstances, you might have thought Congress would hold a hearing about what has gone right so far and how to turn this incipient and vulnerable progress into something more permanent. Instead, we got yesterday's backward-looking affair at the House Committee on Oversight and Government Reform, the latest in a series of sessions aimed at December's federally engineered merger of Bank of America and Merrill Lynch, which has ended up costing taxpayers about $50 billion. Resentment of bailing out Wall Street is a bipartisan affair, so both Republicans and Democrats on this committee are determined to show how wrong it was for officials, including Federal Reserve Chairman Ben S. Bernanke, then-New York Fed boss Timothy F. Geithner and then-Treasury Secretary Henry M. Paulson to strong-arm Bank of America chief executive Kenneth D. Lewis into swallowing Merrill even after it turned out that the former Wall Street powerhouse faced much bigger losses than previously known.

In the witness chair yesterday, Mr. Paulson pretty much pleaded guilty to telling Mr. Lewis that he would be out of a job if he reneged -- with the explanation that the alternative would have been worse, namely a financial meltdown that would have spread around the world and probably cost taxpayers many billions more than did the Merrill-Bank of America merger or the bailout of insurance giant AIG. "By far the biggest advantage to the taxpayers is what didn't happen," Mr. Paulson said. Unsatisfied, several committee members arraigned Mr. Paulson for allegedly bailing out the banks and AIG to benefit his former Wall Street firm, Goldman Sachs. As proof, they cited Goldman's record profit of $3.4 billion in the second quarter.

Even though Mr. Paulson didn't quite dare to say it, Goldman's good quarter is a sign that he and other decision-makers made the right calls back in the scary fall and winter of 2008. The objective of government policy should be to get financial firms to where they are once again profitable without taxpayer support. It's absolutely true, as members of the committee said and as Mr. Paulson acknowledged, that the bailout of Wall Street is fraught with moral hazard: It broke the basic rule of capitalism, which says that business executives should bear all the costs of their bad decisions. But it's also true that financial stability is a public good. When the collapse of one or more financial institutions threatens to destroy financial stability, a government bailout can serve the public interest. Believing that, Mr. Paulson and his colleagues made some very difficult decisions under dangerous conditions. The ultimate results of those tough choices are still unknown. A fairer congressional inquiry, though, would start from the premise that, if he had not taken the actions that he did, the subject of today's investigations might have been a much, much bigger catastrophe.

Ted van Dyk: Obama Needs to 'Reset' His Presidency

Obama Needs to 'Reset' His Presidency. By TED VAN DYK
The president we have is very different from the man who campaigned for the office in 2008.
WSJ, Jul 17, 2009

Time out, Mr. President.

As we approach the August congressional recess, it's clear that our economic distress is deeper than we thought, and thus your health-care and energy initiatives are in danger of stalling out. You could use a reset button for domestic policy.

Let's take it from the top.

Your presidential campaign was superb. You restored hope to millions -- including me -- who had been demoralized by the political polarization that characterized the presidencies of Bill Clinton and George W. Bush. You talked about reaching across party and ideological lines to get the public's business done. Your biography was appealing, and for those of us who entered politics motivated by the civil-rights struggle, your candidacy represented an important culmination.

You displayed an intellect and sense of cool that made us think you would weigh decisions carefully and view advisers' proposals with skepticism.

The first warning signals for me came with your acceptance speech at the Democratic National Convention. In it, you stressed domestic initiatives that clearly were nonstarters in the already shrinking economy.

I had greater concern when you staffed your administration and White House with a large number of Clinton administration retreads who had learned their trade in the never-ending-campaign culture of the Clinton years. Some appeared to represent what you had pledged to eradicate in the capital.

Many of the missteps that have followed flowed, in part, from your reliance on these Clinton holdovers. Your chief of staff, Rahm Emanuel, defined your early strategy by stating that the financial and economic crises presented an "opportunity" to jam through unrelated legislation. To many of us, the remark was cynical and wrong-headed.

The crises did not represent an opportunity. They presented an obligation to do one thing: Return our financial system and our economy to good health.

Since January, your advisers have compared your situation to those of Presidents Franklin D. Roosevelt and Lyndon Johnson after their landslide victories in 1932 and 1964. In fact, your situation is quite different. Most centrally, FDR's and LBJ's victories and congressional majorities were far larger than yours. Thus their mandates were stronger.

FDR's first months in office were devoted entirely to financial and economic recovery. His big domestic initiative, Social Security, was not enacted until 1935. LBJ pushed an ambitious Great Society agenda into law in 1965. But the U.S. economy was growing robustly in 1965. Johnson referred to it as "an endless cornucopia" which would generate tax revenues to pay for the Great Society. When he learned in mid-1967 that the projected federal budget deficit was $28 billion -- almost twice the amount projected six months earlier -- he went to Congress to push for tax increases in order to prevent Vietnam War and Great Society spending from creating unacceptable deficits.

Your staff recently has compared your strategy in pushing health-care and energy initiatives to the way Johnson pushed his Great Society legislation. That's not a fair comparison. Johnson's initiatives were framed in the White House by his administration. But at every stage, congressional leaders of both political parties and financial, business, labor and other private-sector leaders were consulted. Johnson wanted to assure that his legislation was substantively sound and could get consensus support in the Congress and the country.

Your strategy, by contrast, has been to advocate forcefully for health-care and energy reform but to leave the details to Democratic congressional committee chairs. You did the same thing with your initial $787 billion stimulus package. Now, you're stuck with a plan that provides little stimulus until 2010. A president should never cede control of his main agenda to others.

This tactic has already had negative consequences. Frightened by the prospective costs of your health-care and energy plans -- not to mention the bailouts of the financial and auto industries -- independent voters who supported you in 2008 are falling away. FDR and LBJ, only two years after their 1932 and 1964 victories, saw their parties lose congressional seats even though their personal popularity remained stable. The party out of power traditionally gains seats in off-year elections, and 2010 is unlikely to be an exception.

What adjustments should be made?

- Cut back both your proposals and expectations. You made promises about jobs that would be "created and saved" by the stimulus package. Those promises have not held up. You continue to engage in hyperbole by claiming that your health-care and energy plans will save tax dollars. Congressional Budget Office analysis indicates otherwise.

It's time to re-examine these initiatives. Could your health plan be scaled back to catastrophic coverage for all -- badly needed by most families, but quite affordable if deductibles are set at the right levels? Should the Rube Goldbergian cap-and-trade proposals be replaced with a simple carbon tax, with proceeds to be allocated to alternative-fuels development?

The evolving health and cap-and-trade bills are loaded with costly provisions designed to gain support from congressional leaders and special-interest constituencies. In short, they have become an expensive mess. This legislation will not clear Congress by the August recess, as you have requested, and could be stalled for the remainder of 2009. Settle for incremental change: Do not press Democratic legislators to vote for something they fear will destroy them in 2010.

- Talk less and pick your spots.You are outdoing even Johnson and Mr. Clinton with your daily speeches in the capital and around the country.

Applause and adulation are gratifying. But the more you talk, the less weight your words will hold. Let voters see you at your desk, conferring with serious people about serious matters. When you do choose to talk, people will understand that it's important and they should listen.

- Conform your 2009 politics to your 2008 statements. During your campaign, you called for bipartisanship and bridge-building. You promised to reduce the influence of single-issue and single-interest groups in the policy process. Yet, in your public statements, you keep using President Bush as a scapegoat.

You have ceded content of your principal proposals to Democratic congressional leaders who in large part have yielded to special-interest constituencies and excluded Republican leaders from policy formulation. This certainly was the case with the stimulus plan. It has been the case with health and energy legislation, with the notable exception of Sen. Max Baucus's attempt in the Senate Finance Committee to develop genuinely bipartisan legislation.

You have an enormous reservoir of goodwill among Americans of all persuasions. They want you to succeed. Level with them and trim your proposals to what is practical in the current environment.

You had things right in 2008. Take a timeout. Get back to yourself. Make a fresh start.

Mr. Van Dyk was Vice President Hubert Humphrey's assistant in the Johnson White House and active in national Democratic politics over 40 years. He is the author of "Heroes, Hacks and Fools," (University of Washington Press, 2008).

Defining Activism Down: A liberal vote cast in conservative judicial rhetoric

Defining Activism Down. WSJ Editorial
A liberal vote cast in conservative judicial rhetoric.
WSJ, Jul 15, 2009

After two days of Senate hearings on the nomination of Sonia Sotomayor, an onlooker could be forgiven for wondering where all the judicial liberals went. To hear the adjectives heaped on the judge by members of the President's party, you'd think Mr. Obama had nominated Chief Justice John Roberts's conservative cousin.

Judge Sotomayor is smart and accomplished, New York Democrat Chuck Schumer said Monday, "but most important . . . [her record] bespeaks judicial modesty" and shows she is a better "umpire" than Justice Roberts himself. Dick Durbin called her "restrained, moderate and neutral," while Pat Leahy said her record shows a "careful and restrained judge with a deep respect for judicial precedent."

The activists in Mr. Leahy's rhetorical show are, presto, the conservatives of the Roberts Court, which has very, very cautiously chipped away at some precedent in cases on issues like the Second Amendment and campaign finance reform.

Under this brave new meaning of judicial activism advanced several years ago by now-White House aide Cass Sunstein, a judicial activist is any judge invalidating a federal law, however shoddily made. Ergo, conservative judges are obliged to uphold liberal precedents no matter how narrow the vote and how recent the case, while liberals can overturn long-time principles in the name of the evolving Constitution.

The effect is a liberal ratchet, where precedents like Miranda v. Arizona and Roe v. Wade are cast in stone, but any rethinking by the Roberts Court of the six-year-old 5-4 campaign-finance ruling in McConnell v. FEC is a scandal. "So many of the rulings of the current conservative majority on the Supreme Court can be described as activist," Wisconsin Democrat Russ Feingold insisted. "The best definition of a judicial activist is when a judge decides a case in a way you don't like."

Actually, we have a better one. An activist judge is one who is willing to decide cases based on something other than what's in the Constitution. But that's a troublesome standard for Sonia Sotomayor, who in speeches and writings has shown she is open to a wide variety of sources, from human empathy to personal experience to foreign and international law to help her in judging cases, or to "set our creative juices flowing," as she said of the latter.

Under questioning yesterday on her controversial remark that a "wise Latina" would make better decisions than a white male, Judge Sotomayor backed away from the statement, calling it a "bad" play on the words of Sandra Day O'Connor that a wise old man and a wise old woman would reach the same conclusion. Still, she insisted, she was trying to inspire Hispanic law students "to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do."

Democrats emphasize that Judge Sotomayor's record on the bench shows she is a moderate whose decisions were frequently in step with her colleagues on the Second Circuit Court of Appeals. According to a study by the left-leaning Brennan Center for Justice, Judge Sotomayor voted with the majority in 98.2% of her 217 constitutional cases, dissenting only four times.

Falling within the mainstream of liberal judges, however, is not the same as falling into the mainstream of the rest of the country. The judge's decision to deny a racial bias claim by white firefighters was overturned by the Supreme Court in Ricci v. DeStefano last month. Afterward, a Rasmussen poll found that 46% of voters considered her a political liberal compared to only 32% who thought she was a moderate. Justices shouldn't be confirmed based on polls, but the numbers do explain the concerted Democratic attempts to define her as a conservative.

In fact, what was once the Felix Frankfurter-Whizzer White school of liberal judicial restraint no longer exists in the polite echelons of the judicial left. The new school is now remarkably uniform in wanting to dictate racial outcomes, limit political speech, invoke foreign rulings as a legal guide, and do whatever else the activist cause of the moment demands.

Judge Sotomayor gives every sign of being of that school, and there's little reason to believe she wouldn't be a reliable liberal vote on every important issue. Elections have consequences, and Justice Sotomayor is almost certain to be confirmed. But for a President who was elected on the promise of moving beyond old racial divisions, Mr. Obama's first Supreme Court nominee looks jarringly passé.

If other countries have 'good ideas' it's up to Congress, not the courts, to copy them

Sotomayor and International Law. By COLLIN LEVY
If other countries have 'good ideas' it's up to Congress, not the courts, to copy them.
WSJ, Jul 14, 2009

Sonia Sotomayor will parry a wide range of questions about her judicial philosophy during her Supreme Court confirmation hearings in the Senate this week. The most revealing line of inquiry may be about her views on the use of foreign and international law when judging cases.

Like several of the judges on the left branch of the court, Judge Sotomayor has said she favors a broader consideration of foreign and international law in U.S. judicial opinions. While she rarely had occasion to dip into foreign sources during her time on the Second Circuit, she recently went out of her way to embrace the concept and its applications by the high court.

In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that "ideas have no boundaries," and that "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system." To discourage the use of foreign or international law, she added, would "be asking American judges to close their minds to good ideas."

That's political quicksand for a judge Democrats are eager to portray as a moderate inclined to narrow reading of text and precedent.

Of particular interest to the confirmation hearings will be Judge Sotomayor's favorable reference in the ACLU speech to the Supreme Court's reasoning in two recent cases citing foreign and international law: Roper v. Simmons and Lawrence v. Texas. In Roper, the Court drew on international criticism of the death penalty to buttress the argument that it should be prohibited for juveniles under the Eighth Amendment prohibition of cruel and unusual punishment.

In Lawrence v. Texas, the court overturned a Texas statute against sodomy on the grounds that it violated due process. In his opinion for the majority, Justice Anthony Kennedy cited the European Court of Human Rights to show that the court's earlier decision in Bowers v. Hardwick was incorrect. In both those cases, Judge Sotomayor said, the court was using the foreign or international law to "help us understand what the concepts meant to other countries and . . . whether our understanding of our own constitutional rights fell into the mainstream of human thinking."

Cases like Roper and Lawrence fit squarely into that area of overseas law most sought after for borrowing by the more liberal justices of the court -- that is, the realms of moral or social policy. The problem with such inspiration is that it is inherently subjective and arbitrary. The laws of the world are infinitely diverse, and praising one necessarily condemns another. Cherry-picking desirable law introduces the very kind of legal chaos our Constitution was designed to prevent. If one judge may look to the courts of Western Europe for expansion of liberal thoughts on human rights, why may another not look to decidedly less liberal ideas?

Iran allows women who appear without a hijab on the streets to be lashed 74 times. China limits families to bearing one child. Even the democracies of Western Europe have laws that differ broadly from ours. Few countries, for instance, share our rules protecting the rights of the accused, or have the U.S.'s constitutionally mandated separation of church and state.

In his dissent from the court's reliance on foreign law in Roper v. Simmons, Justice Antonin Scalia wrote that "The Court should either profess its willingness to reconsider all these matters in light of the views of foreigners, or else it should cease putting forth foreigners' views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one's own thinking and ignore it otherwise is not reasoned decision making, but sophistry."

There are plenty of ways to use foreign law appropriately -- most obviously in comparing standards for implementation in the case of treaties. Some judges have also looked to Constitutional antecedents like English jurist William Blackstone to help better understand the context and thinking of the Founders and their foundations in English common law.

Outside of that, using foreign law as a guidepost or inspiration raises issues of both sovereignty and democracy by permitting jurists outside the U.S. system to guide the trajectory of our democracy. The proper place for the consideration of whatever "good ideas" may be found in foreign law is not the courts but the Congress.

Judge Sotomayor insists in the ACLU speech that the brouhaha about foreign and international law is due to a misunderstanding about how she and others like Justices Stephen Breyer and Ruth Bader Ginsburg would propose to use it. The point, she says, isn't that judges actually use foreign decisions as precedent (er, well, of course they don't), but that they open their minds to the intellectual force of their foreign counterparts.

But either foreign ideas carry weight by butressing judicial arguments, or they don't. Judicial opinions are written with great precision and care because they matter, and each strand of argument becomes a part of the grit and texture of American law.

No one is suggesting that judges stop reading or learning in ways that help expand their understanding of the law and the cases they are hearing. But that is an altogether different matter than official citation in a decision.

Our system of government has stood the test of time not in spite of but because it is uniquely drawn from the priorities of our own citizens, and them alone. The responsibility of the Supreme Court is neither to win an international beauty pageant, nor to encourage the export of our ideas.
It is to extend principles of the Founders and the words of the Constitution into a world that still needs their wisdom.

Ms. Levy is a senior editorial writer for the Journal, based in Washington.

Tom Goldstein' op-ed on Sotomayor on TNYT

Today’s New York Times Op-Ed on Judge Sotomayor. By Roger Clegg
Bench Memos/NRO, Tuesday, June 16, 2009

The New York Times today has an op-ed by Tom Goldstein about Judge Sotomayor’s decisions involving race.

Mr. Goldstein “conclude[s] that Judge Sotomayor does not allow bias to infect her decision-making.” It’s not a persuasive op-ed.

Let me note at the outset that others, including our own Ed Whelan, have earlier noted some problems with Mr. Goldstein’s methodology. Let me note also that others, including The Washington Post, have counted the cases involved differently than Mr. Goldstein.

Mr. Goldstein’s discussion in today’s op-ed begins and ends tendentiously, lamenting that “many of us remain incapable of having a conversation about ethnicity that does not devolve into charges of racism,” that “critics have latched onto [Judge Sotomayor’s] decision” in the New Haven firefighters case to “infer … that Judge Sotomayor must be biased against whites”; he calls this “hysteria” and ends with another lament, of “[u]nsubstantiated charges of racism.” It’s ironic that the op-ed, which implicitly calls for a white lab-coat, calm and disinterested review of the facts, should bracket its discussion with such name-calling.

Mr. Goldstein’s discussion of a narrow range of cases also completely ignores the fact that some of the suspicion of Judge Sotomayor, and the fear that she might be influenced by race, ethnicity, and sex in her opinions, is fueled by the fact that, in her talk and writing off the bench, she has said that judges are influenced by race, ethnicity, and sex in their opinions, and seems to think that this is perfectly fine. So it’s not unreasonable for the judge’s critics to be looking especially hard for problems in her decisions.

Nor is it very persuasive to argue, as Mr. Goldstein does, that such fear can be refuted by statistics showing that, in percentage terms, most of Judge Sotomayor’s decisions are not problematic. Suppose the shoe were on the other foot, and a conservative judge had just a couple of decisions that the Left objected to in, say, the abortion area — would that be the end of the matter? The answer, of course, is that it would not — and I’m not hypothesizing here: We know from past experience that is not. Nor should it be: A bad decision in a particularly difficult and sensitive case can reveal a lot about what kind of a justice a judge will be, when her cases will almost all be difficult and sensitive.

On the court of appeals, on the other hand, we would not expect that all or even most decisions would be problematic. No doubt most cases are so clear-cut, one way or the other, that judges on both ends of the spectrum will agree on their disposition. What’s more, saying that a panel is unanimous doesn’t mean that the decision was not problematic (the panel might have been composed of all activists); saying that some of those panels included “a Republican-appointed judge” does not avoid that problem (there are plenty of activist Republican-appointed judges — like, say, Earl Warren and William Brennan, not to mention David Souter and Judge Sotomayor herself, who was, technically, a Republican-appointed district judge).

I have not “reviewed every single race-related case” on which Judge Sotomayor has ruled, but I know of at least three disturbing ones. There’s the New Haven case, of course; and Hayden v. Pataki¸ in which, Mr. Goldstein acknowledges, “she concluded that felon disenfranchisement laws are [racially] discriminatory and violate the Voting Rights Act”; and Brown v. City of Oneonta, which Ed discusses here.

Oh, and by the way: Mr. Goldstein is looking only at decisions in one area. So he’s not considering her decisions on property rights, the Second Amendment, etc., which have also come in for criticism.

In this regard, I should also note that one of the cases that Mr. Goldstein (and the Washington Post, in an article last week) cites as supposedly reassuring involved a policeman who was fired for mailing out racist and anti-Semitic fliers. Judge Sotomayor, in dissent, wanted to rule against the police department — just as the ACLU's New York affiliate had urged the court to do. So, sure, her position favored a bigoted policeman, but she also wanted to use an aggressive interpretation of the First Amendment to tie the hands of the police department. Thus, this decision is hardly evidence of non-activism, which is the real issue. And in that regard, pace Mr. Goldstein’s op-ed, the fact that Judge Sotomayor doesn’t urge judges “to disregard the plain language of any statute or to invent exceptions to statutes” obviously doesn’t mean that she isn’t doing so.

There is, in sum, plenty for the Senate Judiciary Committee to be concerned about.

Sotomayor's Mind-Numbing Speeches

Sotomayor's Mind-Numbing Speeches. By Matthew J. Franck
Bench Memos/NRO, Thursday, June 11, 2009

I have just come up for air from the stifling smog of banality generated by the collected speeches of Sonia Sotomayor. They can be seen as the attachments to Question 12d on this page set up by the Senate Judiciary Committee, but let me hasten to add that I have wasted my morning on reading them so you don't have to.

I was interested in part in whether I was right to speculate yesterday that maybe her best-known speech, 2001's "A Latina Judge's Voice," was partly "unscripted" or ab-libbed, since that might explain the occasionally bad writing in its published form. It could not have been wholly off-the-cuff, of course, with its recitation of statistics and its quotations from a few sources—but those might have been on notecards. Having gone through virtually all the speeches on the Senate website, I can say that what the Berkeley La Raza Law Journal published was almost certainly based on a prepared text. I say that for a couple of reasons.

First, Judge Sotomayor's speeches all display mediocre writing, and frequently exhibit errors of various kinds, and the copies of them that have been made public are in most cases quite obviously her own originals. She said of herself as long ago as 1994 that "I consider myself merely an average writer," and as recently as 2007 that "[w]riting remains a challenge for me even today . . . I am not a natural writer." This is a salutary self-awareness, because her speeches are bad—uniformly boring, almost invariably devoid of actual ideas, and completely forgettable. I am not sure she has ever uttered an interesting thought off the bench—unless you count her celebration of the "wise Latina," which is interesting only to the pathologist of confused identity politics.

Second, Sotomayor's speeches are mind-numbingly repetitious when read in series. This may seem an unfair comment; each one was presumably a first-time listening experience for her audience (one can hope, anyway). But reading them in series, I began quietly to mutter to the speaker, "Get some new material. Aren't you boring yourself?" She didn't just once deliver the line "I became a Latina by the way I love and the way I live my life"; she delivered it easily a dozen times to (mostly Hispanic) audiences over the course of ten years or so. And the repetition allows us to see the same little mistakes over and over. To take just two: Sotomayor has a fond memory from her childhood of the Mexican comedian Cantinflas, but she never once spells his name correctly in at least a half dozen speeches (after which I stopped counting). And she likes relating how the city girl came to Princeton and had never heard a cricket before, and how she imagined it looked like "Jimmy the Cricket" from the Disney movie Pinocchio (once she called him "Jiminy the Cricket," which gets a little closer, but in subsequent speeches she went back to Jimmy). Such repeated mistakes over a period of years provide us with some assurance that all the errors we see are her own, and not transcription errors from audio recordings. So when she refers to "Anthony Scalia" for "Antonin" or "Thurmond Marshall" for "Thurgood," we can be pretty sure that's Sotomayor's own mistake.

I can also confirm what others have observed about the notorious "wise Latina" speech at Berkeley: that it was not an isolated instance of such an argument against traditional notions of judicial impartiality.

Sotomayor's speeches for the most part fall into three large categories: 1) celebrations of her Latina background, combined with exhortations to strive as she has done, delivered to young Hispanic audiences; 2) encouragement to law students to take up pro bono work and benefit their communities; and 3) brief descriptive accounts of the work of the courts on which she has served, trial and appellate. In the first category there are mostly harmless hurrahs for being Hispanic or Latino or Puerto Rican or whatever. Many of these contain a variant of this paragraph from 1998:

America has a deeply confused image of itself that is a perpetual source of tension. We are a nation that takes pride in our ethnic diversity, recognizing its importance in shaping our society and in adding richness to its existence. Yet, we simultaneously insist that we can and must function and live in a race- and color-blind way that ignores those very differences that in other contexts we laud. That tension between the melting pot and the salad bowl, to borrow recently popular metaphors in New York, is being hotly debated today in national discussions about affirmative action. This tension leads many of us to struggle with maintaining and promoting our cultural and ethnic identities in a society which is often ambivalent about how to deal with its differences.

Nothing here, without more, should cause anyone to conclude that Sotomayor is for race-consciousness in judging. The paragraph is almost studiously non-committal and merely descriptive, except for its initial characterization of the "tension" between diversity and colorblind equality as a mark of a country that has a "deeply confused image of itself." Lots of Americans could easily explain to Judge Sotomayor how this is no source of confusion at all.

But then, overlapping with all these mostly boring celebrations of the joys of being a Latina, we find the speeches that do indicate something about Sotomayor's view of judging. The Berkeley La Raza speech, given in October 2001, was given again in almost identical form on February 26, 2002, and October 22, 2003. And an earlier version, containing much of the same material but not yet polished into its best-known form, was given on March 17, 1994 in Puerto Rico, on the topic of "Women in the Judiciary." Because of that topic and the audience listening to the speech, Sotomayor referred to a "wise woman with the richness of her experiences" rather than a "wise Latina." But the essentials of the speeches we know from 2001 and later were all there: the disagreement with Judge Miriam Cedarbaum's argument for judicial neutrality, the expectation that better judging will come from women and minorities because they are women and minorities, and the plumping for more appointments of Hispanic judges in particular.

In sum, we can say that Judge Sotomayor has, with few exceptions, given just three or four speeches to public audiences in her career—the same three or four, over and over and over. One of her repeated themes is on the virtue of race-conscious and sex-conscious bias in judging. Like her other themes, this one cannot be "walked back" by White House claims that she "misspoke" or could have made her point differently. She is, on the evidence of her speeches, a great self-absorbed bore, a mediocrity as a writer, and a polished practitioner of identity politics.

Sotomayor decisions "defy depictions of her record as falling neatly into either a liberal or conservative category"

Yesterday's Odd Washington Post Story. By Roger Clegg
Bench Memos/NRO, Jun 09, 2009

The Washington Post yesterday had a long story arguing that Judge Sotomayor's decisions on "race, discrimination and the law" somehow "defy depictions of her record as falling neatly into either a liberal or conservative category." The article picks the eight cases that involved divided rulings. But, accepting arguendo the Post's methodology, I don't see how the article shows that Sotomayor is not a predictable liberal.

In six of the eight cases, it seems to me that the Post acknowledges that Judge Sotomayor came to a liberal result. Of the remaining two, one involved a policeman who was fired for mailing out racist and anti-Semitic fliers. Judge Sotomayor, in dissent, wanted to rule against the police department — just as the ACLU's New York affiliate had urged the court to do. Sure, her position favored a bigoted policeman, but she also wanted to use an aggressive interpretation of the First Amendment to tie the hands of the police department.

That leaves Hankins v. Lyght, involving a minister who sought to invoke the Age Discrimination in Employment Act when his church forced him to retire at age 70. The district court dismissed the case, but the Second Circuit remanded for the judge to consider whether applying the Religious Freedom Restoration Act (RFRA) would change the outcome; Judge Sotomayor dissented. Here's a link to the appellate opinions. Judge Sotomayor seemed especially unhappy that the panel went out of its way, in her view, to uphold the constitutionality of the RFRA; but that's an odd sort of "violat[ion] . . . of judicial restraint" (her words), and since RFRA was enthusiastically supported by the religious right, I'm not sure that her position is necessarily the un-liberal one. In any event, the appeal did not involve race and was more about procedure than substance, and it's hard to argue that this one ambiguous case out of eight proves the Post's thesis.

Federal President’s Economic Circle

Obama’s Economic Circle Keeps Tensions High. By JACKIE CALMES
TNYT, June 7, 2009

Did Larry Summers really sign off on these policies?

Say It Ain't So, Larry. By Irwin M. Stelzer
Did the president's top economic adviser really sign off on these policies?
The Weekly Standard, June 08, 2009, Volume 014, Issue 36

Ninety years ago the Chicago White Sox intentionally lost--dumped, to you sports fans--the World Series. Legend has it that a young fan implored the team's star, "Shoeless" Joe Jackson, as he emerged from the court house, "Say it ain't so, Joe." The Shoeless one allegedly responded, "Yes, I'm afraid it is, kid."

Let's hope that chief White House economic adviser Larry Summers wouldn't respond similarly if someone were to charge that he sat silently when the administration's political types decided it would be just fine to submit a budget that will take the ratio of debt-to-GDP from around 40 percent to 80 percent--most critics say 100 percent is where the debt-to-GDP ratio will in fact end up in ten years. Surely Summers knows that many economists use a rule-of-thumb that suggests that such an increase will force interest rates up between 1.25 and 1.5 percentage points, with unpleasant consequences for our economic growth rate. Or that, according to the highly regarded Stanford professor John Taylor, we could only inflate our way out of the problem by allowing a 100 percent rise in the price level over a ten-year period.

More important, it was only a few weeks ago that Summers told an audience at the Brookings Institution that it is "a criterion of fiscal sustainability that ensures that once the economy has recovered, the ratio of the nation's debt to its income stabilizes rather than continuing to grow. . . . Once your income has returned to normal . . . your debts can't be rising relative to your income." But just such an increase is built into the president's ten-year budget.

Summers is famous for his intellect and ability to shoot down nonsensical ideas, so if he was not asleep or absent, he must have gone along. Say it ain't so, Larry.

The administration, led by GM and Chrysler CEO Barack Obama, also decided to lay hands on the auto industry. First it shortchanged the companies' creditors--pension funds and investors who had lent the -companies money on terms that gave them preferential access to the companies' assets should there be a bankruptcy. What matter contractual obligations when the United Auto Workers is awaiting payback for its support of Obama in the primary and general election campaigns? Surely Summers knows that such a move will make investors more reluctant to lend in the future and inclined to charge higher interest rates to any companies they do finance. Some say Summers sat in on these meetings and either lost the argument--implausible, in the view of those who have jousted with him in the past--or remained silent. Say it ain't so, Larry.

The administration has also promised to lower health care costs by introducing new IT systems and expanding insurance coverage. Virtually every expert says that information technology might be a nice thing--automated records, easily accessible--but at best will have only a trivial effect on costs. And just how expanding coverage can lower costs remains a mystery to most economists. Unless, of course, the administration is planning to ration health care, a nightmarish system that until recently led the National Health Service in Britain to deny treatment to patients suffering from macular degeneration until they were blind in one eye. Summers knows all about these cost figures and the inefficiencies of rationing. Did he decide to go along to get along? Say it ain't so, Larry.

Then there is energy policy. The president says he can make us independent of foreign oil. Summers knows he can't. He knows too that many economists contend fuel efficiency standards are more likely to deny consumers the cars they want than to have any effect on global climate, given the developing countries' plans to build thousands of new coal-fired generating stations. Summers had the opportunity while at Harvard to sit at the feet of the wonderful energy economist Professor William Hogan (as did I, although the thought of Summers meekly sitting at the feet of a colleague does strain credulity). So he must have decided either to nod off during the energy policy meetings at the White House or to defer to climate and energy policy czar Carol Browner. Say it ain't so, Larry.

The administration is determined to encourage trade union membership and the growth of union power. Rules for reviewing the expenditures of union officers are being relaxed. "Card check" is to replace the secret ballot in union recognition elections. Compulsory arbitration is to be accorded a large role in the future, putting government arbitrators in a position to respond favorably to union demands. Summers once believed that unionization contributes to long-term unemployment. That was 20 years ago, and he now says circumstances might have changed. But it is worth reading what he wrote in The Concise Encyclopedia of Economics:

Another cause of long-term unemployment is unionization. High union wages that exceed the competitive market rate are likely to cause job losses in the unionized sector of the economy. Also, those who lose high-wage union jobs are often reluctant to accept alternative low-wage employment. Between 1970 and 1985, for example, a state with a 20 percent unionization rate, approximately the average for the fifty states and the District of Columbia, experienced an unemployment rate that was 1.2 percentage points higher than that of a hypothetical state that had no unions. To put this in perspective, 1.2 percentage points is about 60 percent of the increase in normal unemployment between 1970 and 1985.

So is he in favor of card check, compulsory arbitration, and the rest of the Obama trade union agenda? Say it ain't so, Larry.

There's more, but you get the idea. When Barack Obama won the election and began to staff up, those of us who worried that the administration's policies would lean so far in the direction of political pandering as to create serious economic problems took heart when we learned that Larry Summers was to be at the center of policy-making. His fearless intelligence and debating skills would certainly prevent the administration from making terrible, irrevocable policy errors. Christina Romer, chosen by Obama to chair his Council of Economic Advisers, might prefer that appointment to fidelity to her academic research findings--tax cuts are more effective in stimulating an economy than is spending--but surely Larry Summers would not. So great is his reputation that Obama's chief political adviser, David Axelrod, told the press, "I'm not sure we would have gotten him but for the fact that we have a crisis that is equal to his talents."

Many of us joined Axelrod in praising Obama for landing Summers. And those who know him even slightly had no doubt that he has the good sense to treat fools slightly more kindly than his reputation would lead one to expect. So he could be heard. But we wonder if his voice of sanity has gone the way of Paul Volcker's, stifled and ignored. Say it ain't so, Larry.

Irwin M. Stelzer is a contributing editor to THE WEEKLY STANDARD, director of -economic policy studies at the Hudson Institute, and a columnist for the Sunday Times (London).

A Tale of Two Tests: Together We Learn to Read and Write

A Tale of Two Tests: Together We Learn to Read and Write. By Francis Beckwith
What's Wrong with the World, May 29, 2009

On Sotomayor's Bartlett v. the New York State Board of Law Examiners case, 1997.

A Smile to Set the GOP on Edge

A Smile to Set the GOP on Edge. By Eugene Robinson
WaPo, Friday, May 29, 2009

President Obama's nominee for the Supreme Court, Judge Sonia Sotomayor, is a proud and accomplished Latina. This fact apparently drives some prominent Republicans to a state resembling incoherent, sputtering rage.

"White man racist nominee would be forced to withdraw. Latina woman racist should also withdraw," former House speaker Newt Gingrich ranted Wednesday on Twitter. My first reaction was that politicians above a certain age should never be left alone in the danger-strewn landscape of social networking. My second thought was: Whoa, Newt, what's that about?

Rush Limbaugh also -- predictably -- bellowed endlessly about how Sotomayor was a "reverse racist," and how Obama was one, too. But unlike Gingrich, Limbaugh doesn't ask to be taken seriously. He just asks to be paid.

Gingrich's outburst was in reaction to a widely publicized, out-of-context quote from a 2001 speech in which Sotomayor mused about how her identity might or might not affect her decisions as a federal judge. Far from being some kind of "racist" screed, the speech was actually a meditation on Sotomayor's personal experience of a universal truth: Who we are inevitably influences what we do.

Each of us carries through life a unique set of experiences. Sotomayor's happen to be the experiences of a brilliant, high-powered Latina -- a Nuyorican who was raised in the projects of the Bronx, graduated summa cum laude from Princeton, edited the Yale Law Journal, worked as a Manhattan prosecutor and a corporate lawyer, and served for 17 years as a federal trial and appellate judge.

Given that kind of sterling résumé -- and given that she has, according to presidential adviser David Axelrod, more experience on the federal bench than any Supreme Court nominee in at least 100 years -- it's understandable that Republican critics would have to grasp at straws.

The charge that she's a "judicial activist" finds no basis in her voluminous record. Critics have seized on a ruling she joined in a case called Ricci v. DeStefano, involving a reverse-discrimination claim by a group of white firefighters in New Haven, Conn. But Sotomayor's action in that case is more properly seen as an example of judicial restraint.

What happened was that the city gave an advancement exam to firefighters, and no African Americans were deemed eligible for promotion. Fearing that it would lose ground in its effort to diversify the leadership of the fire department, and fearing a civil rights lawsuit, the city canceled the exam. The firefighters who passed did not get the promotions they had expected. A U.S. District Court judge ruled that the city government had acted within the law, and a panel of the U.S. Court of Appeals for the 2nd Circuit -- including Sotomayor -- agreed.

What Sotomayor's attackers either don't understand or won't acknowledge is that the issue before the court wasn't whether the city of New Haven had acted fairly in canceling the exam but whether it had acted legally. There was ample precedent indicating that the action was, in fact, legal. I thought the whole theory of judicial restraint was that we didn't want unelected judges telling our elected officials what to do. I thought the conservative idea was that judges were just supposed to "call balls and strikes" -- which is just what Sotomayor and her colleagues did.

Ah, but there's always a subtext. Like Sotomayor's 2001 speech, the New Haven case was really about identity -- and about power. In both instances, as Sotomayor's critics saw it, minorities were either claiming or obtaining some kind of advantage over white males. Never mind whether this perception has any basis in fact. The very concept seemed to be enough to light a thermonuclear fuse.

Despite the best efforts of Gingrich, Limbaugh and others, Sotomayor's confirmation process probably won't be about race. Her qualifications are impeccable, her record is moderate and her personality, according to colleagues, is winning. At her confirmation hearings, she'll have the opportunity to supply the missing context for any quote they throw at her. Absent some 11th-hour surprise, I can't imagine that her opponents in the Senate will be able to lay a glove on her.

I also can't imagine that she'll pretend to be anyone other than who she is. Sonia Sotomayor has made clear that she is proud of her identity, and she offers that pride not as an affront but as an example -- not white, not male, not Anglo, not inclined to apologize. She is the new face of America, and she has a dazzling smile.

The Sotomayor Rules

The Sotomayor Rules. By Kimberley Strassel
Some were made to be broken.
WSJ, May 29, 2009

President Barack Obama has laid down his ground rules for the debate over Supreme Court nominee Sonia Sotomayor. The big question now is whether Republicans agree to play by rules that neither Mr. Obama nor his party have themselves followed.

Ground Rule No. 1, as decreed by the president, is that this is to be a discussion primarily about Judge Sotomayor's biography, not her qualifications. The media gurus complied, with inspiring stories of how she was born to Puerto Rican immigrants, how she was raised by a single mom in a Bronx housing project, how she went on to Princeton and then Yale. In the years that followed she presumably issued a judicial opinion here or there, but whatever.

The president, after all, had taken great pains to explain that this is more than an American success story. Rather, it is Judge Sotomayor's biography that uniquely qualifies her to sit on the nation's highest bench -- that gives her the "empathy" to rule wisely. Judge Sotomayor agrees: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn't lived that life," she said in 2001.

If so, perhaps we can expect her to join in opinions with the wise and richly experienced Clarence Thomas. That would be the same Justice Thomas who lost his father, and was raised by his mother in a rural Georgia town, in a shack without running water, until he was sent to his grandfather. The same Justice Thomas who had to work every day after school, though he was not allowed to study at the Savannah Public Library because he was black. The same Justice Thomas who became the first in his family to go to college and receive a law degree from Yale.

By the president's measure, the nation couldn't find a more empathetic referee than Justice Thomas. And yet here's what Mr. Obama had to say last year when Pastor Rick Warren asked him about the Supreme Court: "I would not have nominated Clarence Thomas. I don't think that he was a strong enough jurist or legal thinker at the time for that elevation."

In other words, nine months ago Mr. Obama thought that the primary qualification for the High Court was the soundness of a nominee's legal thinking, or at least that's what Democrats have always stressed when working against a conservative judge. Throughout the Bush years, it was standard Democratic senatorial practice to comb through every last opinion, memo, job application and college term paper, all with an aim of creating a nominee "too extreme" or "unqualified" to sit on the federal bench.

Mr. Obama knows this, as he took part in it, joining a Senate minority who voted against both Chief Justice John Roberts and Justice Sam Alito. Mr. Obama also understands a discussion of Judge Sotomayor's legal thinking means a discussion about "judicial activism" -- a political loser. In a day when voters routinely rise up to rebuke their activist courts on issues ranging from gay marriage to property rights, few red-state Democrats want to go there. Moreover, a number of Judge Sotomayor's specific legal opinions -- whether on racial preferences, or gun restrictions -- put her to the left of most Americans.

Which brings us to Ground Rule No. 2, which is that Republicans are not allowed to criticize Judge Sotomayor, for the reason that she is the first Hispanic nominee to the High Court. The Beltway media also dutifully latched on to this White House talking point, reporting threats from leading Democrats, including New York Sen. Chuck Schumer, who intoned that Republicans "oppose her at their peril."

This would be the same Mr. Schumer who had this to say about Miguel Estrada, President Bush's Hispanic nominee (who, by the way, came to this country as an immigrant from Honduras) to the D.C. Circuit Court of Appeals in 2002: Mr. Estrada "is like a Stealth missile -- with a nose cone -- coming out of the right wing's deepest silo." That would be the same Mr. Schumer who ambushed Mr. Estrada in a Senate hearing, smearing him with allegations made by unnamed former associates. That would be the same Mr. Schumer who sat on the Judiciary Committee, where leaked memos later showed that Democrats feared Mr. Estrada would use a position on the D.C. Circuit as a launching pad to become the nation's . . . first Hispanic Supreme Court judge. Two tortured years later, Mr. Estrada withdrew, after the Democrats waged seven filibusters against a confirmation vote.

Republicans will be tempted by this history to go ugly. They might instead lay down their own rules, the first being that they will not partake in the tactics of personal destruction that were waged by the left on nominees such as Mr. Thomas or Mr. Alito or Mr. Estrada. But the party could also make a rule to not be scared away from using Judge Sotomayor's nomination, or future Obama picks, as platforms for big, civil, thorough debates about the role of the courts and the risk of activist judges to American freedoms and beliefs.

Conservative views: A Bad Day for Impartiality - empathy as a code word for judicial liberalism

A Bad Day for Impartiality. By Rich Lowry
Obama uses empathy as a code word for judicial liberalism.
National Review Online, May 26, 2009 6:15 PM

It was a historic day when Pres. Barack Obama announced his nomination of Judge Sonia Sotomayor to the Supreme Court. No president had ever nominated a Hispanic woman. Nor had a recent president — or his nominee — expressed less genuine interest in the traditional craft of judging.

Impartiality has been supplanted by empathy. The old-fashioned virtue of objectivity — redolent of dusty law books and the unromantic task of parsing the law and facts — is giving way to an inherently politicized notion of judging based on feelings. Lady Justice is to slip her blindfold and let her decisions be influenced by her life experiences and personal predilections.

Obama and Sotomayor embrace this method of judging with gusto, even though it is deeply antithetical to justice properly understood. This is why Sotomayor is such a radical choice. Not only will she define the court’s left flank, she represents a judicial philosophy that is neither truly judicial nor a philosophy. The political outcome — and the personal biases that drive it — is paramount.

In introducing Sotomayor, Obama said he valued “a rigorous intellect” and “a recognition of the limits of the judicial role,” before pronouncing them both “insufficient.” A justice must have been tested “by hardship and misfortune,” Obama stipulated, so that he has “a common touch and a sense of compassion.”

It’s as if he wants a justice who can break the tension in an oral argument about the intricacies of antitrust law with engaging sports banter. The “Would you want to have a beer with him?” test reasonably applies to a politician, but to a black-robed justice charged with interpreting the Constitution? Justice Clarence Thomas is delightful company. Does that make his opinions any better or worse?

To complement his essentially political conception of the court, Obama has an essentially political conception of a justice. He voted against John Roberts despite Roberts’s qualifications and love of the law. Roberts failed the political test, defined by Obama as “one’s deepest values,” “the depth and breadth of one’s empathy.”

Obama uses empathy as a code word for judicial liberalism, and few nominees could be as starkly empathetic as Sotomayor. She has the requisite inspiring background. She has been a reliable liberal vote (never mind that the Supreme Court has been singularly unimpressed by her reasoning in cases that have reached it). And she believes that her background is one of her most important qualifications.

In a rambling 2001 speech, she disagreed with a colleague who thought judges should transcend their “personal sympathies and prejudices.” Sotomayor said, “I wonder whether achieving that goal is possible in all or even in most cases.” She argued that “the aspiration to impartiality is just that — it’s an aspiration because it denies the fact that we are by our experiences making different choices than others.” In sum, she said, “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.”

This stunning statement of race and gender determinism perhaps explains Sotomayor’s decision in the New Haven firefighter case now before the Supreme Court. A white firefighter studied for an exam to get a promotion. He bought $1,000 worth of books and had someone read them onto audiotapes because he’s dyslexic. He passed, but the city declined to promote him because no blacks had qualified for promotion.

Sotomayor thought this blatantly race-conscious action passed constitutional muster. Does her 2001 speech mean that she would have ruled differently if she were white, dyslexic, or a working-class firefighter struggling to get ahead? If so, she is manifestly unfit for the highest court in a country that puts the law above tribal loyalties.

Sotomayor’s nomination represents an extraordinary personal accomplishment and an important symbolic affirmation for Latinos. Her confirmation, though, would be another step toward eviscerating the constitutional function of the Supreme Court, as empathy trumps impartiality.

— Rich Lowry is the editor of National Review

WaPo: Kudos, and some questions, for Judge Sonia Sotomayor

The President's Pick. WaPo Editorial
Kudos, and some questions, for Judge Sonia Sotomayor
WaPo, Wednesday, May 27, 2009

THERE IS MUCH to admire in the achievements of Sonia Sotomayor, the New York judge tapped by President Obama to fill a Supreme Court vacancy created by the impending retirement of Justice David H. Souter.

Born to immigrant Puerto Rican parents and raised in a housing project in the Bronx, Judge Sotomayor went on to excel at Princeton and earn a law degree from Yale. She worked as a prosecutor and represented corporate interests in private practice before being named to the federal trial court in New York by President George H.W. Bush; she was later elevated to a slot on the New York-based U.S. Court of Appeals for the 2nd Circuit by President Bill Clinton. As a Hispanic woman with such a diversity of legal experience, she would bring a welcome fresh perspective to the bench.

Judge Sotomayor has spoken about how gender, ethnicity and race influence a judge's views, and that should be one subject for her confirmation hearings. In a 2001 speech, she said: "The aspiration to impartiality is just that -- it's an aspiration because it denies the fact that we are by our experiences making different choices than others. . . . Justice [Sandra Day] O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases . . . . I am not so sure that I agree with the statement. First, . . . there can never be a universal definition of wise. Second, 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."

Senators could ask her, then, how, when deciding a case, she balances the quest for objectivity with her personal experiences. They might also ask her views on judicial activism. In a panel discussion in 2005, she said that a "court of appeals is where policy is made." Conservative critics have seized on this statement to argue that she is a judicial activist who believes judges should make, rather than interpret, the law. Yet her statement could just as easily be understood to be explaining correctly that the courts of appeals -- and not the Supreme Court -- are the venues where the vast majority of cases and policies are ultimately decided.

We hope Judge Sotomayor also will discuss her thinking in the case of Ricci v. DeStefano, in which a group of white firefighters sued the city of New Haven for failing to certify promotion tests because no African Americans had scored high enough to qualify for advancement. A trial court ruled against the white firefighters, and on appeal, Judge Sotomayor and two colleagues essentially rubber-stamped the lower court decision without elaboration, even though the case presented important and undecided questions of law. That case is now awaiting a decision by the Supreme Court justices whom Judge Sotomayor soon hopes to join as a colleague.

Senators are right to closely scrutinize Judge Sotomayor's philosophy and qualifications. She has produced a rich record of opinions as an appeals court judge for the Judiciary Committee to discuss. Senators also should remember that Mr. Obama, like any president, is entitled to deference in choosing a justice.

How Joe Biden Wrecked the Judicial Confirmation Process

How Joe Biden Wrecked the Judicial Confirmation Process. By Collin Levy
The vice president can't complain if Republicans object to Obama's Supreme Court nominee.
WSJ, May 22, 2009

Vice President Joe Biden is widely praised for the expertise he brings in helping Barack Obama choose a replacement for retiring Supreme Court Justice David Souter. Having served for three decades on the Senate Judiciary Committee, he is considered an asset both for his relationships with committee members and his familiarity with the nuts and bolts of judicial nominations. So let's have a look at how the confirmation process actually fared under Mr. Biden's leadership.

As a member of the Senate Judiciary Committee, Mr. Biden was present for the nomination and confirmation of every currently sitting Supreme Court justice except for John Paul Stevens. In 1986, the year before Mr. Biden took over as committee chairman, Antonin Scalia was approved by the Senate in a vote of 98-0. Then came Robert Bork and a presidential election.

Before Judge Bork's nomination, Mr. Biden had said he would support him. And why not? He was widely considered a dazzling legal mind and had even received (during his confirmation to the D.C. Circuit Court of Appeals) a rating of "exceptionally well-qualified" from the liberal-leaning American Bar Association. "Say the administration sends up Bork," Mr. Biden told the Philadelphia Inquirer in November 1986, "and, after our investigations, he looks a lot like Scalia. I'd have to vote for him, and if the [special-interest] groups tear me apart, that's the medicine I'll have to take."

But by the time of the actual nomination, Democrats were promising to play "hardball" with President Ronald Reagan's nominees and Mr. Biden was running for president. Mr. Biden's Democratic colleagues lined up against the nominee. They were led by Sen. Edward Kennedy, who demonized him with a monologue on "Robert Bork's America," which he promised would be "a land in which women would be forced into back alley abortions." Liberal groups joined the chorus for Mr. Biden to recant his earlier support, which he did, helping to defeat Mr. Bork's nomination.

Back then the tactics were considered shocking. Warren Burger, the former chief justice, said he was "astonished" by the comments he'd read about a nominee he thought was one of the most qualified he'd seen in 50 years. If the Senate rejected Mr. Bork, he said, "then they shouldn't have confirmed me."

Just one year after the conservative Mr. Scalia's unanimous confirmation the winds had changed dramatically. The Senate had hitherto proceeded on the principle that it owed the president deference on his judicial selections. No longer.

"The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary," Mr. Biden said in August 1987 in defense of his newfound opposition to Judge Bork. "The Senate has an undisputed right to consider judicial philosophy." With that marker placed, the ultimate winner of the seat vacated by Justice Lewis Franklin Powell Jr. was a nominee nearly devoid of political philosophy -- Anthony Kennedy.

Mr. Biden's obstruction was further rewarded by the first President Bush. In attempting to dodge controversy, he gave liberals David Souter, whose appeal was enhanced by the fact that he had been a federal judge for less than a year and had almost no paper trail.

By the time Clarence Thomas's confirmation hearings came around, Mr. Biden's modus operandi was well known. In his book, "My Grandfather's Son," Justice Thomas recalls that before the Anita Hill inquisition began, Mr. Biden called him and said "Judge, I know you don't believe me but if the allegations come up I will be your biggest defender." "He was right about one thing," Justice Thomas wrote, "I didn't believe him."

Under Mr. Biden's leadership, holding up nominations to the nation's appeals courts also became a routine exercise. In 1988, the Senate Judiciary Committee delayed 17 months before refusing to confirm law professor and scholar Bernard Siegan to the Ninth Circuit Court of Appeals because of his libertarian positions on economic issues. In 1992, Mr. Bush's nominee to the 11th Circuit, Edward Carnes, endured an eight-month delay and an attempted filibuster before finally being confirmed. By 1992, 64 judicial nominees were stuck in the senatorial muck waiting for the Judiciary Committee to give them a yea or nay.

The Senate obstructionism that began with Reagan's nominees thus became a game of political revenge as each new batch of nominees was made to suffer at the hands of one party for the treatment its nominees had received in the last round. Republicans blocked some of President Bill Clinton's nominees, including briefly, Sonia Sotomayor, the Second Circuit judge said to be on Mr. Obama's short list to replace Mr. Souter. Unable to bottle up Miguel Estrada in committee in 2003, Democrats filibustered him on the floor of the Senate. Sen. Carl Levin (D., Mich.) held up as many as four judicial nominations for years in retribution for Republicans blocking Mr. Clinton's nomination of Helene White (she was confirmed for the Sixth Circuit last year). And so on.

The effect of this game has been toxic not only for the nominees but for the courts. Many circuits have suffered judicial emergencies, defined as vacancies on courts overwhelmed by their caseloads, or vacancies languishing more than 18 months on busy circuits. Some stood open longer. The Bush administration's 2006 appointment of Peter Keisler to fill the D.C. Circuit seat vacated by John Roberts was left to expire, unfilled, at the end of the administration.

True, Supreme Court nominees John Roberts and Samuel Alito were confirmed -- but without the support of then Sens. Joe Biden or Barack Obama. Mr. Alito was confirmed by a vote of 58-42, the second narrowest margin in Senate history (after Clarence Thomas). Even Chief Justice Roberts's margin of 78-22 was contentious in historical terms. Ruth Bader Ginsburg was confirmed 93-3, Sandra Day O'Connor 99-0, John Paul Stevens 98-0, and David Souter 90-9.
What is in store for Mr. Obama's nominees remains to be seen. Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, has said he isn't inclined to the filibuster even if it is an option and most expect the president's Supreme Court choice will be confirmed.

As a matter of judicial philosophy, however, Mr. Obama has said he wants a nominee who "understands that justice isn't about some abstract legal theory or footnote in a case book." If that is considered by opponents as grounds for rejection Joe Biden will know where they're coming from.

Ms. Levy is a senior editorial writer at the Journal, based in Washington.

Puff piece on Diane Wood in WaPo

Wooden Praise, by Ed Whelan
Bench Memos/National Review Online

This puff piece in today’s Washington Post on Supreme Court candidate Diane Wood somehow manages to discuss her 2001 ruling in NOW v. Scheidler without mentioning her outrageous defiance of the Court’s 8-1 reversal of that ruling. Wood’s willful lawlessness triggered a second Supreme Court reversal—that time unanimous—and is powerful evidence that she is unfit to serve on the Supreme Court.

The Post article quotes lavish praise of Wood from “Chicago lawyer Fay Clayton”:

She's as bright as Posner and Easterbrook and really holds her own, and I think she would hold her own with the great intellects on the high court as well…. Everything she does is based on precedent and statutory construction and the facts.

Although you won’t learn it from the Post article, Fay Clayton was—you guessed it?—counsel for the National Organization for Women in NOW v. Scheidler.

Message from the CIA Director on Pelosi's Controversy

Message from the Director: Turning Down the Volume
Statement to Employees by Director of the Central Intelligence Agency Leon E. Panetta
CIA, May 15, 2009

There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress.

Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

My advice—indeed, my direction—to you is straightforward: ignore the noise and stay focused on your mission. We have too much work to do to be distracted from our job of protecting this country.

We are an Agency of high integrity, professionalism, and dedication. Our task is to tell it like it is—even if that’s not what people always want to hear. Keep it up. Our national security depends on it.

Leon E. Panetta

Posted: May 15, 2009 02:46 PM
Last Updated: May 15, 2009 02:46 PM
Last Reviewed: May 15, 2009 02:46 PM