This afternoon, the Senate passed Senator Jeff Sessions' (R-Ala.) amendment to the hate crimes provision in the National Defense Authorization Act (S. 1390). His dangerous, misguided, and unconstitutional amendment seeks to expand the scope of the federal death penalty, as well as extend it to include non-homicide crimes.

The ACLU has several concerns with Sen. Sessions' amendment. First, capital punishment is an unreliable form of punishment that has the disturbingly frequent result of being imposed on the innocent. Second, expansion of the death penalty under the Sessions amendment would directly defy the precedent of the Supreme Court that has held repeatedly that the death penalty cannot be used in anything less than homicide cases. Third, the amendment seriously obstructs Americans' civil rights. The death penalty is always wrong.

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We don't usually interrupt our serious discussion of constitutional law on ACSblog, but today, we're asking for your assistance. ACS's Spring Appeal is critical to helping fund many ACS resources, including ACSblog and we need your help to reach our $100,000 goal. We're very close - only $3,000 away - and your gift today can help put us over the top. As we hope you have noticed, ACSblog has made a number of design changes that allow us to offer more content and to greatly expand our network of writers and readers. Your generous support has made this possible, and we want to keep enhancing this product and building our network.

Especially during difficult economic times, ACS relies on the generosity of individual members like you, and for your support we are truly grateful. To donate, please visit www.acslaw.org/donate or click here.

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Gary S. Feinerman, a partner at Chicago's Sidley, Austin LLP, one of the nation's leading appellate attorneys, and a member of the ACS Chicago Lawyer Chapter Board of Advisors, was recently selected as the new president of the Illinois Appellate Lawyers Association.

Outgoing ALA President Michael I. Rothstein told the Chicago Daily Law Journal, "Gary is one of the finest and most talented appellate lawyers in the country. He's accomplished at a relatively young age more than most appellate lawyers accomplish in an entire career." Feinerman, who has argued two cases before the U.S. Supreme Court, told the legal newspaper that beyond increasing ALA members, he would like to bolster the services provided to members, such as adding more Web seminars and making it easier to attend continuing legal education seminars. Illinois Attorney General Lisa Madigan also lauded Feinerman's appellate work saying, "Gary gets it. He sees the big picture as well as seeing all the details."

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Judge Sonia Sotomayor's conduct during her Senate confirmation hearing last week surprised and disappointed a number of progressive constitutionalists. I certainly did not expect her to channel Chief Justice John Roberts to the extent that she did. Nor did I expect Sen. Lindsey Graham (R-S.C.) to be the one to suggest that there is no "legal cookbook" in momentous cases and that justices decide them in part based on their broad vision of who we are as Americans. But before we judge the judge harshly (as I was at first tempted to do), we might pause to consider how we would have advised her had we been responsible for getting her through the process.

I am probably not alone in wanting to imagine Supreme Court confirmation hearings as embodying a democratic moment in which intelligent adults who often disagree reasonably but irreconcilably debate the future course of constitutional law-as in part an educational moment in which the attentive portion of the public learns about the dynamic nature of constitutional law and the role of a justice in American society. But how I want to imagine the hearings has little to do with what the hearings are in fact about these days. Moreover, one treats others as adults at one's peril when one has little reason to believe that they will behave like adults.

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Elizabeth Warren, the administrator overseeing distribution of TARP funds, echoed parts of a speech she gave at the 2009 ACS National Convention on Rachel Maddow's show recently. Warren, the brain behind the Obama administration's proposal to create a Financial Consumer Protection Agency, spoke to Maddow about the plan in the brief clip below.

"If you can't explain it so the person on the other side can understand it, you shouldn't sell it to them,"  Warren said. "The bottom line is you need to explain your products in a way that's clear to the customer ... so that the customer can compare one product to another. Now the reality is that's going to push down profits in that industry and leave more money in the hands of middle class families." 

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It's not well known as a profession, but court reporting does have its share of takers. If you have come across people in this industry and are considering giving it a go, you need to know if you are suited to the work that's involved, if you have what it takes to make a success of it. Court reporting is a good career choice if you:

• Are dedicated, hardworking and willing to practice long and hard in order to be the best in the business.
• Are prepared to take a training program from either a regular or an online school.
• Are willing to put in long hours of practice before you become perfect and are able to take down transcripts without carrying or dropping words.
• Are willing to work long and odd hours in order to meet with deadlines and schedules.
• Are able to learn a few tricks and tips of the trade to help you improve your speed and accuracy
• Have a good head for names and exceptional memory power.

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ACS hosted a panel discussion Tuesday at the National Press Club that focused on The Constitution In 2020, a new book released by Oxford University Press and edited by Yale Law School Professors Jack Balkin and Reva Siegel. The volume contains 27 essays about the future of the U.S. Constitution by leading scholars in the fields of constitutional and civil rights law. The ACS panel discussion took place as the Senate considered President Obama's first Supreme Court nominee, Judge Sonia Sotomayor. The panel featured Balkin, Siegel, Walter E. Dellinger III, and Mark Tushnet, and was introduced by ACS Executive Director Caroline Fredrickson. Click here to view video of the event. Individual interviews with Balkin and Siegel, also available as podcasts, are available here.

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Guantánamo Bay, July 16, 2009: At 1:40 PM the court room was prepared for motions to be heard against five men accused of plotting the 9/11 attacks, except that one of the detainees was talking with his attorney in such a loud tone that it was difficult for the proceedings to begin.

Mustafa al Hawsawi, one of the five so-called "9/11" defendants, claimed that he had been misled about his role in the day's proceedings and said that he wished to leave before motions even began.

Al Hawsawi's abrupt departure followed more than three hours of legal wrangling. At issue were questions regarding the detainees themselves. Did they have to attend their own hearings? If they refused, should the staff judge advocate use force to compel them to be in the court room?

Like so many things at Guantánamo related to military commissions, this was unchartered territory where the officials in charge seemed, at times, to be unsure of the rules.There is no legal precedent to fall back on. This is the first time that the military commissions were dealing with these issues in a conspiracy case involving multiple defendants.

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By Richard C. Schragger, Class of 1948 Professor of Scholarly Research in Law, University of Virginia School of Law

A number of commentators have wondered why Judge Sotomayor has adopted what appears to be a conservative notion of judging. She seems to have embraced the idea (at least in these hearings) that personal experience should not affect a judge's decision, that "law" writ large controls all cases, and that judges simply call "balls and strikes" but do not make policy. 

These ideas are not conservative, I submit; they are driven instead by the notion that it would be intolerable for unelected judges to act as legislators. The idea that the judge, acting properly, will arrive at a legal answer to a dispute (i.e., one dictated by law) is at the core of some prominent conceptions of the role of judges in a constitutional democracy. Thus, on the right we have Justice Scalia's constitution of rules, which always tells him the right answer. And on the left we have Ronald Dworkin's view that a judge of Herculean ability will arrive at the correct outcome even in hard cases. In neither account do judges exercise strong discretion -- they aren't making policy, they are "doing law." And that is important because both views are driven by a theory of democracy that requires judges to adhere to laws made by folks other than themselves.

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In no particular order, some final thoughts on the Sotomayor hearings. Start with the obvious: There will not be a filibuster and she will be confirmed handily (65-67 votes).

First, what are the chances that some GOP House member (likely a far-right backbencher looking to make a name for himself) argues that the House should impeach Justice Sotomayor? Might it happen just after she writes an opinion (probably within the next two years) that cites to foreign or international law or that supports an affirmative action program or that refuses to recuse from the non-Maloney Second Amendment incorporation case? This seems like the next step in the evolution of nasty confirmation politics. The hearings no longer provide any check on the President’s appointment authority; after Bork (and to a lesser extent Thomas), no nominee ever says anything beyond the sorts of bland platitudes we heard from Roberts and now Sotomayor; no one will say anything controversial (or meaningful) enough to give a critical mass of Senators (including Senators from the nominating President’s party) grounds to vote against her. And getting "tough" (or nasty) in questioning has become popularly counter-productive--as Republicans saw this week and as Democrats saw in 2005.

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Georgetown University Law Professor Louis Michael Seidman comments in today's New York Times that Judge Sonia Sotomayor adopted, during her confirmation hearings, the "official ideology" about judging. James R. Copland, of the Manhattan Institute, more or less says the same thing when he describes her remarks as "traditionalist."

I wonder if they are both mistaken.

I heard Judge Sotomayor say repeatedly that the policies and values underlying and supporting the legal text before the Court were key to understanding its meaning and reach. Coupled with her insistence on fully understanding the facts, especially so she could explain to the parties the why-and-how of her analysis and holding, suggests to me an approach that could be most like that of Justice Thurgood Marshall. As I wrote in a brief essay in the John Marshall Law Review, Justice Marshall "considered the gory details of trial records in the light of his own experience and saw things other Justices would overlook, misunderstand, or undervalue."

It sounded to me that Judge Sotomayor approached the facts in the same way with the same concern (dare I say empathy).

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There is blame all around for the utter inanity of these hearings on the issue of the actual work of judging. An exchange yesterday between Sen. Coburn and Judge Sotomayor on the subject of using foreign and international is a case in point.

At one point, Coburn asked whether anything in the Constitution granted judges permission or power to rely on foreign and international law. Coburn asked the judge to "cite for me the authority either given in your oath or in the Constitution that allows you to utilize laws outside of the country."

The premise underlying these questions is silly. Of course neither the oath nor the Constitution says anything about utilizing laws outside of the country. But the Constitution also does not say anything about Originalism, Textualism, Living Constitutionalism, social science, canons of construction, precedent, interpretive methodology, history and purpose, or any other of the ordinary methods of judicial analysis. Article III vests the "judicial power" in the Courts of United States; enveloped within that term are all the tools by which judges interpret legal sources and find meaning, including resort to persuasive legal sources. The fact that nothing grants judges permission or power to use foreign law is meaningless, since nothing grants judges permission to look to state law (in federal cases) or to look at law review articles or to look at legislative history or to do anything that will help them interpret and determine applicable law. There is a nice question whether Congress could prohibit courts from relying on foreign or international law (Justice Scalia has emphatically said hell no; I argue the answer is different in constitutional and statutory cases). But absent a ban, judges don't need permission to do the ordinary work of judging.

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It's hard for me to watch the Sotomayor confirmation hearings, not only because of the Senators' generally unfocused, rambling questions. Conservatives and many of their most cherished values and ideas were just resoundingly defeated in an election. Congress is overwhelmingly Democratic, with 60 Democrats in control of the Senate, which will vote on the nomination. Yet, the hearings and the media coverage of them are dominated by conservatives and conservative ideas about law and justice, and a lack serious criticism of the last three decades of conservative dominance of the courts.

I am aware of and share the priority of getting Sonia Sotomayor seated on the Supreme Court. But there is a big gap of possibility between safely doing that and the surrender we're watching.

The senators of both parties and Judge Sotomayor often seem to be in a debate over who has the most passive vision of judging. Listening to them, one might think judges don't make decisions at all but simply write down legally required results, and have no apparent need for judgment or experience.

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Following his participation in a panel discussion on judicial elections at the 2009 ACS National Convention, Bert Brandenburg, executive director of the Justice at Stake Campaign, talked with ACSblog about the potential impact of the recent Supreme Court decision in Caperton v. A.T. Massey on state judicial elections. In Caperton, the high court ruled that a West Virginia Supreme Court justice should have disqualified himself from hearing a case involving a campaign contributor. Watch Brandenburg's interview below or download a podcast here.

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Guantánamo Bay, July 15, 2009: As the Obama administration and Congress mull reinventing for the third time a legal system to try terrorism suspects, three hearings were held today at Guantánamo Bay in the military commission cases of Omar Khadr, Mohammed Kamin, and Ibrahim al Qosi.

The good news is that changes the Obama administration has asked for may help improve a process that has never operated in a way that folks familiar with the American legal system would recognize as justice. The bad news is that the system is so flawed that these changes cannot salvage it. Meanwhile, our normal federal criminal courts competently go about the business of trying international terrorism cases, to the tune of over one hundred, in the years shortly before and since 9/11. Go figure.

Most of the court time today was spent on motions that the government made seeking a 120-day delay in each of the cases. Doesn't it seem that something is fundamentally wrong with a system in which after six or seven years of holding a man in prison, the government has to ask for another four months to prepare?

Here are some tidbits from the proceedings I observed today.

* * * * * * * * *

"I will take a shower when you guys are ready to send me home," said Mohammed Kamin, a detainee who was captured on May 14, 2003, and has been held at Guantánamo since at least 2004. Kamin declined to attend his hearing today, saying he had no interest in participating in the military commission process and declining an offer for a shower before the hearing. (Kamin's remarks were reported to the court by a representative of the Staff Judge Advocate's office who spoke to the detainee through his "bean hole" - a waist-high slot in his cell that is used to deliver food.)

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