DriveThru – Get What You Need

That is, if you’d like to continue the 9th Circuit’s reputation as the most bizarro, most liberal, most reversed appeals court in the federal system.

Liu, a Berkeley law professor, was nominated by President Obama for a vacant seat on the 9th Circuit U.S. Court of Appeals headquartered in San Francisco. An under-qualified but outspoken liberal, he has managed in his short few years out of law school to burnish and publicize his liberal credentials.

He’s a former board member for an exclusive list of far Left organizations: the ACLU of California, the American Constitution Society of Northern California, and the National Women’s Law Center. He managed to get himself invited to Justice Alito’s confirmation hearings to mischaracterize and then demagogue to the Judiciary committee about Alito’s record.

Liu wrote an op-ed criticizing California’s Prop 8 marriage amendment and the seven million citizens who voted for it by labeling it as “the will of a narrow and ultimately temporary majority.”

And last but certainly not least, Liu firmly has stated his belief in the desirability of courts making law from the bench: “What we mean by [constitutional] fidelity is that the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.”

This guy’s confirmation hearings should be interesting.

h/t to Ed Whelan at Bench Memos

And Chuck Schumer’s, Dick Durbin’s, Russ Feingold’s – shoot, even Al Franken’s. If they’re paying attention, that is. Any Senate Judiciary Committee Democrat  who has ever contributed to the glut of carbon dioxide in the atmosphere by continually pontificating against “extremist right-wingers” on the Supreme Court who are supposedly way, way “out-of-the-mainstream” are going to have trouble explaining this poll.

Seems that 58% of Americans would prefer the Supreme Court to keep the definition of marriage intact, but only 52% expect it to do so, when the Prop 8 case, Perry v. Schwarzenegger reaches there.

Now, I don’t know how Chairman Leahy and his board of mis-directors (a/k/a Judiciary Dems) define “mainstream” judicial philosophy, but it appears that the American public (I’d say 58% qualifies as “mainstream,” wouldn’t you?) views it as a few degrees to the right of where the Court is now. In other words, THEY WANT MORE CONSERVATIVE JUSTICES in the future, not fewer.

So, my dear friends on the Left, when Justice Stevens retires this summer (I’m not saying he is or isn’t, just repeatin’ rumors), please don’t crank up the old “we must stop the ultra right-wing takeover of the Court” meme in order to justify another liberal appointment to the Court. You can’t protect the President on this one.

This poll shows that Americans want marriage to remain marriage. They want justices smart enough to figure out that same-sex marriage is not in the Constitution. And, in a happy coincidence, we may have an opening for just such a justice this summer.

You can either listen to what America is saying, or memorize six words: Martha Coakley, John Corzine, Creigh Deeds.

And he just might get away with it too.

Louis Butler, a former Wisconsin Supreme Court justice, managed to get nominated by President Obama to a federal district court judgeship for the western district of Wisconsin after the voters of Wisconsin twice rejected him as a state judge. The left-leaning American Bar Association has given him a “well-qualified” rating. (Did I mention that he sits on an ABA committee?)The Senate judiciary committee sent his nomination along to the full Senate last week by a contentious 12-7 vote, with all Dems voting for the nominee and all Republicans voting against.

Some brief background. A municipal court judge during the 90’s, he ran for the Wisconsin Supreme Court in 2000 and lost. Didn’t carry a single county. Ok, that doesn’t prove anything. Maybe he’s a bad campaigner.

In 2004, however, Governor Jim Doyle, a Democrat, appointed Butler to the Wisconsin Supreme Court to fill an emergency vacancy. The term for that position ended in 2008. Since Wisconsin elects its judges (except for emergency appointments), Butler ran for re-election against fresh opponent Michael Gableman – and lost. That was the first time since 1967 that an incumbent justice lost a re-election bid. Not a great resume’ bullet point.

With new-found time on his hands, former Justice Butler appeared at a 2008 fundraiser for guess who? Yep, candidate Barack Obama. And Butler talked about the “importance” of federal judicial appointments, Roe v. Wade, gun control, affirmative action etc. Typical liberal judicial catechism. And no pretense of impartiality from Butler. After all, he wasn’t a judge anymore  And here we are, a year later, and guess which supposedly impartial judicial nominee is waiting for his Senate confirmation vote to a lifetime appointment to the federal bench?

No wonder conservatives are outraged. Here’s a sampling: Wall Street Journal, Sen. John Cornyn, Wiconsin Family Action, and Rep. Jim Sensenbrenner.

One interesting sidelight to Tuesday’s Senate Judiciary Committee business meeting at which the nomination of Judge Sotomayor was passed on to the full Senate: a handful of Democrats and Republicans called for reform to the hearing process so nominees would be more forthcoming.

Sen. Kohl  (D – WI) observed:

“…But for many years we have seen a familiar pattern from nominees – Democratic and Republican alike – who have learned that the path of least resistance is to limit their responses and cautiously cloak them in generalities.”

Kohl hastened to add that, of course, he wasn’t talking about Sotomayor’s testimony. (Wink)

Russ Feingold (D – WI), who likewise prefaced his comments by assuring everyone in the room that he also wasn’t talking about Sotomayor, said this:

“ I’ve said before that I do not understand why the only person who cannot express an opinion on virtually anything the Supreme Court has done in recent years is the person from whom the American public most needs to hear.”

Despite Kohl and Feingold’s unintentionally humorous evasion, it was obvious that Sotomayor displayed the time-honored skill of offering answers we’ve come to know and love over the last couple decades (“I’m sorry Senator, but that’s an issue that very possibly might come before the Supreme Court, and I can’t pre-judge how I might rule in that case, blah, blah..”). I’m not faulting her for doing the same thing every other nominee does. But Kohl and Feingold are fretting over a world that they and their Democratic friends helped create when Bob Bork was nominated for the Supreme Court by President Reagan. Funny they didn’t mention that.

The Senate Judiciary ought to reform the easy things it can control, like how long it takes for an appellate court judge nominee to get a hearing, then a vote. The full Senate could abolish the filibuster of judges and guarantee them the up-or-down vote that “advice and consent” implies. But to hope for a different Supreme Court nomination process would entail keeping the likes of Senators Leahy, Schumer, Feingold et al away from all reporters’ microphones for the duration, which ain’t gonna happen.

At least until after we solve that sticky world peace problem.

Today the Senate Judiciary committee voted 13 – 6 to recommend Judge Sotomayor’s nomination to the full Senate, which is expected to hold four days of debate and conduct an up-or-down vote before the August 7 recess.

Lindsey Graham was the sole Republican on the committee to vote in favor of the nomination.

The really big news, however, is that Americans have not been won over to Sotomayor. Check out the surprising results of the latest Zogby/O’Leary poll on Sotomayor. Informed voters (meaning they were familiar enough with the hearings and information available on Sotomayor to make a judgment) are evenly split, with 49% in favor and 49% opposing her nomination. Since she will probably be confirmed by the Senate with upwards of 70 votes, there appears to be a disconnect between senators and their constituents. (“Disconnect” = the art of plugging your ears while your constituents try to talk to you.)

Another interesting result jumped out from the poll: Hispanics are fairly evenly split on Sotomayor – 47% favor confirmation, 43% are opposed. This is the first type of data I’ve read regarding the Hispanic community and this nomination, so I’d like to hear other people’s reactions to it.

Also, independent voters swung significantly against confirmation, 55% to 44%.

Given the fairly easy hearings she went through, I would have expected a fairly nice bump in the polls, at least to 55-45 in her favor. But the fact that as many Americans now oppose her as support her confirms my belief that a liberal judicial philosophy is easy to spot, and does not sit well with the majority of Americans.

And given the much better polling for John Roberts and Samuel Alito at the same point in their confirmation wars(see here), it appears that the “judicial mainstream” we keep hearing about is significantly further to the right than Chuck Schumer keeps telling us.

Senator Jon Kyl (R – AZ), a leading conservative whose tough questioning of Judge Sotomayor during the Senate Judiciary Committee hearings last week was noteworthy, has issued a statement announcing his intent to vote against Sotomayor’s confirmation and outlining his reasons for doing so. Those reasons include her positions on the use of foreign law, her high reversal rate at the Supreme Court, and the way she handled the Ricci case involving the firefighters’ claim of discrimination, among others. Jan Crawford Greenburg of ABC News interviews Kyl here.

It was obvious to anyone familiar with Judge Sotomayor’s public comments prior to her confirmation hearings that she favored the liberal, Ginsburg wing of the Court on the use of foreign law to interpret U.S. constitutional provisions. (Think “evolving standards” and “emerging awareness” nonsense language that pepper Supreme Court capital punishment and sexual orientation decisions, usually just before the Court cites a EU court decision that goes contrary to American law.) When challenged by Republicans on the Judiciary Committee about her views, she testified under oath that what she REALLY meant was that she agreed with Justice Scalia that you should NEVER use foreign law to interpret the Constitution. (side note – we’re not talking here about treaties and the few circumstances where the use of foreign law IS directly mandated by the Constitution or U.S. law) After the hearings ended, committee members sent her some written questions on this and other subjects, to which she responded.

Odd thing, though. Sotomayor’s written “clarifications” seem to retreat back to her pre-hearing statements on foreign law, which she defends by saying it all depends on what the word “use” meant when she was asked if it was ever proper to “use foreign law to interpret” constitutional provisions.

Senator Coburn has noticed the flip-flop and issued a press release and another document setting forth her pre-, during, and post- hearing statements about the use of foreign law. Other folks in the blogosphere are raising a red flag about it here and here.

The most bizarre comment she now makes, which echoes previous statements by Justice Ginsburg, is this one:

“To the extent that American courts categorically refuse to consider the ideas expressed in the decisions of foreign courts, it may be that foreign courts will be less likely to look to American law as a source of ideas.”

Wow. I never knew that our court system was designed to impress other nations, rather than to deal with cases and controversies of our own citizens.  This is a perfect example why judicial philosophy is so very important, and why Americans should pay attention to this issue during confirmation hearings and at election time.

The Senate Judiciary vote on Sotomayor is scheduled for the 28th of July. The Senate floor debate and vote will likely occur sometime before the August 7th recess, according to Sen. Sessions.

On the one hand, Sotomayor’s testimony sounded like Chief Justice Roberts: she rejected the “empathy” standard set forth by President Obama for his judicial appointees (does that mean he should withdraw her nomination?); she rejected, to some degree anyway, the notion that foreign law should be a determinative factor in interpreting U.S. law or the Constitution; she rejected the “living Constitution” notion of interpreting constitutional issues and made the case for a Scalia-like judicial philosophy (of looking at the text first, and if still unclear, then to the original understanding of the law or constitutional provision); and she rejected the notion that judges ought to legislate social policy and testified that the people, through their elected representatives, should determine such policy.

On the other hand, the “wise Latina” comment, her 3rd Circuit decision in the Ricci firefighter case, her 12 years as a board member of an advocacy organization that argued for radically pro-abortion positions, and her speeches about foreign law (as opposed to her testimony), left me uneasy. We’ve witnessed, frankly, two distinctly different nominees: the Sotomayor with a generally unobjectionable judicial record (with some notable exceptions like Ricci); and the Sotomayor of her speeches and writings and board memberships, which are indicative of someone who would not be in the judicial mainstream if she were allowed to inject her ideas into Supreme Court jurisprudence.

Some other views from around the blogosphere have been interesting. Ed Whelan, who clerked for Justice Scalia and has been following the hearings, has a harsh assessment of Sotomayor’s testimony. Jonathan Adler suggests in the Washington Post that conservatives are winning the argument over judicial philosophy, even if they lose the battle over this nominee. The Heritage Foundation also weighs in, and their concluding thoughts sum it up nicely:

Was Sotomayor being honest with the Senate Judiciary Committee with these answers? We don’t know. That is a decision each Senator will have to make on their own. At bare minimum though, Sotomayor’s testimony proves that the left is unwilling to defend the core of their judicial beliefs in a public forum. As the New York Times reports: “By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet…Several legal experts said Judge Sotomayor’s testimony might make it harder for Mr. Obama to name a more liberal justice next time.”

What’s next? The Judiciary Committee must vote on whether to recommend Sotomayor to the entire Senate for a floor vote. CSPAN reported that the next business meeting of the Judiciary Committee is on Tuesday, July 21. Republicans have the right to ask the committee at that time to hold the vote over to the following week. After the committee votes, the nomination will go to the floor of the Senate and the debate could begin almost immediately. Democrats have indicated that they want a floor vote completed before members leave for their August recess.

Rassmussen reports that Sotomayor has received a bounce in the polls today, with 44% now in favor of her confirmation, and 37% opposed.

Yes, Al Franken used valuable hearing time to ask Sotomayor how she decided on a career in law, and the two went off on a riff about watching Perry Mason. And when she brought up that Mason actually lost one case on the show, Franken asked her which case. When she replied that she couldn’t remember, he deadpanned “Didn’t the White House brief you on this question?” Compared to Senator Leahy’s feeble attempts at humor all day, Franken brought down the house. I mean the Senate.

On a serious note, there are two issues that have not only carried over from yesterday, but seem to have grown in importance. First, the “wise Latina” statement continues as a subject for discussion, and her continuing explanation, which I commented on here, is so unbelievable that it’s beginning to seriously hurt her credibility. In fact, Erick Erickson over at Redstate puts it much more bluntly.

The second issue that is beginning to get legs is Sotomayor’s feigned ignorance of the abortion litigation positions of the Puerto Rican Legal Defense and Education Fund. Yesterday she testified that she’d never read any of those legal briefs. That may be, as they say in court, accurate but non-responsive. Sotomayor not only served on the board of PRLDEF for 12 years, but for 8 of those she served on its litigation committee. She had to have known of, and approved the litigation positions taken by her own organization. Unfortunately, no Senator has asked her that straightforwardly. I can only hope someone does so before the hearing wraps up. I want to see what happens when the news headlines read “Sotomayor supported federal funding for abortion, opposed even parental notice.”

Thursday we’ll complete round 2 of questioning, and then get to the panels of outside witnesses.

Odds and ends from today’s testimony, significant and not so significant:

Sotomayor’s “wise Latina woman” comment dominated the questioning. After listening to her explain that comment at least 8 different ways today, my only conclusion is that she threw herself under the bus by explaining that her comment REALLY meant the opposite of what she said.

Here’s her quote (from 6 different speeches she’s given over the years):

“Justice 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 also not so sure I agree with the statement….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.”

And here are two different quotes from Sotomayor today – you be the judge:

“The words I used, I used agreeing with the sentiment that Justice Sandra Day O’Connor was attempting to convey.”

and

“I want to state up front, unequivocally and without doubt, I do not believe that any ethnic racial or gender group has an advantage in sound judging.”

On other issues:

Sotomayor clearly distanced herself from President Obama’s campaign speeches about how judges in the hard cases have to rely on their “heart.” Any judge hoping to get confirmed to the Supreme Court would probably do the same, but it was interesting to hear her completely disagree with the touchy-feely judicial philosophy of the former U. of Chicago constitutional law lecturer turned President.

A potential nomination-derailing subject for Sotomayor is her 12-year tenure on the Board of the Puerto Rican Legal Defense and Education Fund, during which the organization filed legal briefs in at least 6 important abortion cases arguing the most radically pro-abortion positions possible, from taxpayer funding of abortion, to equating abortion regulations with slavery. When Sen. Lindsey Graham asked about the organization and its radical litigation advocacy, Sotomayor used the Sgt. Schultz defense: “I know nothing, nothing!” Since it has been reported that she was deeply involved in the policy-making decisions which formed the litigation strategy of the PRLDEF, it remains to be seen in tomorrow’s questioning whether she can successfully continue to distance herself from those litigation positions.

Best inquirers of the day: Senators Kyl and Graham.

Most annoying habit: After a particularly effective Republican inquiry of Sotomayor, Chairman Leahy habitually injects a 30-second-or-so statement intended to rehabilitate the witness before he passes the witness to the next questioner. However, his bizarre off-the-cuff statements over the last couple days concerning Miguel Estrada, his rewriting of the “wise Latina” comment to say something completely different, and his attempts at humor have served to prove that he should stick to his script.

Tomorrow: 8 questioners still remain for round one; then a closed session; then round two of questions, with each questioner allotted 20 minutes.