• June 28, 2013

    by John Schachter

    Article III of the U.S. Constitution plainly states that members of the Supreme Court “shall hold their Offices during good Behaviour.” For so-called textualists or strict constructionists who believe in using the actual words of the Constitution to interpret its meaning the time has come to kick Justice Samuel Alito off the bench.

    I have a nearly 14-year-old son – also named Samuel, by the way. Ever since he was toddler, we have told him to show respect for his peers, teammates, friends and teachers, for young and old alike. (Even for his parents, hard as that message is to sell.) When he scoffs at others’ opinions, interrupts those sharing their thoughts or – most annoying of all – rolls his eyes when someone is speaking, we reprimand him for his “bad behavior.”

    Justice Alito apparently never learned this lesson. As a result his behavior on the Court (and sometimes outside it) is anything but exemplary. It seems that it’s not just his opinions and votes that are offensive, but that his treatment of colleagues and other esteemed leaders is equally odious.

    The Washington Post’s Dana Milbank chronicled Alito’s rude treatment of Justice Ruth Bader Ginsburg during the Court’s closing sessions, as he “visibly mocked” her during her reading of a dissent to one of his right-wing opinions. His eye-rolling also caught the attention of The Atlantic’s Garrett Epps, who called the behavior a “mini-tantrum” that “brought gasps from more than one person in the audience.”

    Milbank reported that Alito’s insolence extends beyond his ocular offenses aimed at Ginsburg. Days before as both Justices Elena Kagan and Sonia Sotomayor read from opinions in other cases Alito “demonstrated his disdain” for his colleagues by glowering, shaking his head and (it must be his signature move) rolling his eyes.

    Of course, all of this bad behavior comes on the heels of Alito silently yet snippily scolding President Obama during the 2010 State of the Union address when the president had the audacity to criticize the Court’s decision in Citizens United.

    When it comes to bad behavior, it doesn’t take an experienced jurist or constitutional scholar to “know it when [we] see it.” (It’s a lot easier to define than pornography.) So for those who believe in the words and text of the Constitution, let’s hear your call for Alito’s removal – or let’s hear your contorted reasoning why not.

    But you better not simply roll your eyes.

  • July 15, 2009
    Guest Post

    By Bernadette A. Meyler, Professor of Law, Cornell University Law School

    When Senator Tom Coburn today asserted -- after asking Judge Sonia Sotomayor whether states have the right to determine the definition of death -- that he did not actually expect her to answer, but simply to pay attention to the question in her deliberations, he seemed to be conceding the likelihood of her confirmation. If this is the case, his interventions can be read as having a purpose apart from determining whether or not Judge Sotomayor should sit on the Supreme Court. Instead, Senator Coburn rehearsed for the American public a set of hot-button issues raised by the Supreme Court's jurisprudence, including whether technological advances should affect the understanding of viability in the abortion context, whether there is a constitutional right to self-defense that underpins an individual right to bear arms, and whether American courts should cite foreign law.

    The many rounds of debates about the citation of foreign law that have already occurred may render legal scholars somewhat fatigued with the topic, but it remains a point of public controversy. In her remarks, Judge Sotomayor lucidly and succinctly illuminated how much of the discussion consists in people talking past each other. As she emphasized, there is a public misunderstanding of what "using" foreign law means to most judges; rather than relying on foreign legal authority as a precedent or to influence the outcome of a case interpreting the U.S. Constitution or a statute, judges simply "use" foreign legal principles or decisions as helpful aids in thinking through domestic legal problems.

    Had she been so inclined, Judge Sotomayor could perhaps have cited Senator Coburn's own opening remarks to illuminate the distinction. Towards the conclusion of his statement, after expressing concern about the justices' invocation of foreign authority, Senator Coburn explained that Aristotle defined law as "reason free from passion," and endorsed that view. Are we to deduce from this remark that Aristotle was an American, or is it more plausible to think that our legal system shares certain general principles with its foreign counterparts, whether ancient or modern?

  • June 21, 2009
    Guest Post

    By Benjamin Brueseke, practices law in Las Vegas.

    On May 26, 2009, President Obama nominated Judge Sonia Sotomayor to replace Justice David Souter on the United States Supreme Court. Judge Sotomayor is highly qualified for the position, having graduated summa cum laude from Princeton and served as an editor of the Yale Law Journal. She will also, when confirmed by the Senate, be the only sitting Justice with prior experience as a trial court judge and the only Justice with experience as an assistant district attorney.

    The norm of elevating federal appellate court judges to the high court is a relatively recent phenomenon. Promotions were rare in the nineteenth century: only six of the fifty-seven Justices appointed before 1900 had served on the lower federal courts. At that period of time, the lower federal courts were relatively weak and presidents and senators may not have thought of those courts as a good source for Supreme Court nominees. Today, every member of the current Court came directly from a federal appeals court, making that the first time that every justice shares that prior career experience. It has been nearly two decades since anyone who has not served as a federal appellate judge has been confirmed to sit on the court.

  • June 19, 2009
    In a stirring speech before a standing room only crowd at the opening session of the 2009 ACS National Convention, U.S. Sen. Sheldon Whitehouse provided a strong rebuttal to some of the opposition to the confirmation of Supreme Court nominee Judge Sonia Sotomayor.

    Taking on the critics who questioned the relevance of Judge Sotomayor's background, Whitehouse quoted Justice Oliver Wendell Holmes' famous aphorism that, "The Life of the law has not been logic: it has been experience ...."

    "No matter whether one agrees with the results courts reach, we all should recognize the wide discretion properly left to judges in interpreting the law and applying it to the facts of the case," Whitehouse said.

    "Constitutional law," Whitehouse continued, "often turns on the judgment of courts, as the relevant doctrines require the balancing of competing crucial interests to deduce the important objects. Separation of powers cases, for example, require courts to evaluate the competing interests and prerogatives of the branches of government. Due Process cases require a weighing of governmental and private interests, since Due Process, as the Supreme Court explained in Mathews v. Eldridge, ‘is flexible and calls for such procedural protections as the particular situation demands.'"

    Whitehouse stated that Sotomayor's life experiences would prove an invaluable asset to her ability to be an outstanding Supreme Court justice.

    "It is harsh, narrow-minded, and ahistoric to contend that a rich life experience and natural empathy" as "at odds with the wise exercise of judicial discretion that is the longstanding tradition underlying the American system of law," he said. "Broad and diverse life experiences can make for better judgment and truer justice, and we should celebrate a nominee who would bring these qualities to the bench."

    Whitehouse questioned the sincerity of the opposition's arguments that have targeted these experiences, as well as some comments regarding her background, education and upbringing.

    "Indeed, is Judge Sotomayor's life experience as a wise Latina woman, or President Obama's concern for judicial empathy, really the issue?" he said. "Or does that stated concern reveal more about the critics than about the judge and the President? Does it not perhaps reveal impatience with any worldview that has not been groomed in corporate boardrooms, scrubbed by the Federalist Society, cosseted by privilege and exclusion, and comforted by the status quo?

    "Our world, I think, is bigger than that, and our Constitution must be sized to fit that larger world," Whitehouse continued. "If Sonia Sotomayor represents a part of that larger world, even if she takes some points of view outside their comfort zone, that may be the very best argument for her nomination."

    Whitehouse closed by noting that his "consideration of her nomination will ultimately turn upon her record and the answers she gives at her hearing."

    Sen. Amy Klobuchar, also a member of the Judiciary Committee, this morning addressed a packed house at the Convention, further making the case for Judge Sotomayor, noting that she has "seventeen years of reasoned decisions," and bring more judicial experience to the High Court than any justice in 100 years.

    Video of Sen. Whitehouse's speech is available here and the text is here.


  • June 17, 2009
    Stanford Law School professor Richard Thompson Ford says supporters of the Connecticut firefighter and lead plaintiff in the employment discrimination case, Ricci v. DeStefano, are misplacing blame for the case's outcome on appellate court judges, especially Judge Sonia Sotomayor.

    In a piece for Slate, Ford writes:

    The anger and frustration of the top-scoring firefighters who expected promotions is understandable. But the outrage on the right is also ironic, because the reason that people who sue for employment discrimination - like Frank Ricci - rarely win their cases is that conservative judges have spent decades making sure they usually lose.

    Ford concludes:

    Under existing law, Frank Ricci is simply one of many frustrated plaintiffs with plausible claims of discrimination that they can't prove. Judge Sonia Sotomayor, for her part, wasn't hostile to Ricci's claim in particular: In fact, she voted against the plaintiffs in 78 out of 96 other discrimination cases she heard as an appellate judge. That's a margin of 8-to-1. So if you're angry that Frank Ricci has had such a hard time in court so far, don't blame judges like Sotomayor who applied the law. Blame the Supreme Court justices who made it.