ConfirmThem -

Constitution Day

AndrewHyman — Thu, 17 Sep 2009 19:32:59 -0400

John Vile put it this way:

Whereas officers in some dictatorships pledge personal allegiance to their leaders, American officers, like the President himself, pledge first and foremost to uphold the Constitution of the United States. In this way, they affirm that the rule of law is superior to the rule of a human leader.

Well said.

Open Thread

AndrewHyman — Mon, 14 Sep 2009 08:32:15 -0400

I just re-wrote the blurb at the top right of the page ("ABOUT CONFIRMTHEM").

Underneath Their Robes

AndrewHyman — Sat, 05 Sep 2009 00:21:11 -0400

There's some discussion at the end of this September 3, 2009 video about attire of the female justices. It probably wouldn't matter much if the justices were to show up in transparent robes (or birthday suits), but still there's some merit in plain black robes without frills. That tradition of plain black robes without frills was introduced by Chief Justice John Marshall, and Chief Justice Roberts has explained the reason:

[J]udges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision.

Thus is not a huge issue, of course, but the tradition seems wise. If male justices have a low collar that allows them to show off their neckties underneath the robes, then female justices can put on something underneath their robes that also is visible with the same low collar. The robe itself ought to remain plain black, per Marshall and Roberts and every chief justice in between (except for Rehnquist who was "jealous of the Court's female justices" who had broken with tradition). Is an outfit grounds for impeachment? Probably not. But Judge Patricia Wald has the right idea:

“[t]he black robes we wear on the bench unite us in their lack of distinguishability; they make a simple but striking point: We are neither Democratic judges nor Republican judges but, simply, United States judges.” ---Judge Patricia Wald

And Justice Stephen Breyer has a similar viewpoint:

“I have always thought that one of the reasons we wear black robes is that justice should be anonymous. The rule of law should be independent of the personality of the judge that happens to be hearing the case." ---Justice Stephen Breyer

Breyer is 100% right about this. Yes, I just agreed with Justice Breyer about something.

Hat Tip: Orin Kerr at Volokh Conspiracy.

Open Thread

AndrewHyman — Wed, 26 Aug 2009 13:03:04 -0400

Looks like this site was down for several days, but is back up now.

Remembering Eunice Kennedy Shriver and Ted Kennedy

AndrewHyman — Wed, 26 Aug 2009 12:58:19 -0400

Ted Kennedy was a champion of civil rights for minorities, for which he generally deserves praise. He fought hard against both real injustice as well as perceived injustice, and (alas) supported unlimited use of judicial means to achieve policy ends. Both Ted and his sister Eunice carried on the inspirational and progressive legacy of their brothers John and Robert, who they now join.

Eunice Kennedy was a great champion for the disabled, and also for the unborn. While she had great success defending the former --- not so much the latter. In fact, judges deemed her traditional pro-life position so horrible that they forbade legislators from even voting for it. Sometimes the good die young, and sometimes they live to be old and accomplished, like Eunice.

The old song asks, "Didn't they try to find some good for you and me?" Eunice and Teddy did in their own different ways, and now they're walking up over the hill.

UPDATE: I would have much preferred that Eunice instead of Ted had been U.S. Senator from Massachusetts, for the reasons alluded to above, and also for reasons explained by Mark Steyn.

Schumer Said to Be Preparing Nuclear Option, Plus Cato Commentary About Sotomayor

AndrewHyman — Mon, 10 Aug 2009 02:11:51 -0400

The Weekly Standard blog has a post titled, "Schumer Preparing for Nuclear Option to Ram Through Health-Care Bill." That blog post seems somewhat speculative, and Schumer hasn't explicity threatened it.

Meanwhile, Ilya Shapiro of the Cato Institute has some comments about the Sotomayor confirmation hearings. Here are some excerpts, with which I tend to agree:

All Americans should take pride in seeing our first Hispanic Supreme Court justice (not counting Benjamin Cardozo). While this moment should have belonged to Miguel Estrada—who was denied even a vote by an unprecedented Democratic filibuster—we should nevertheless celebrate Sonia Sotomayor’s rise from very humble beginnings to reach the highest court in the land....In walking away from so many controversial positions, Sonia Sotomayor established a new standard to which all future nominees will at least have to pay lip service. While confirmation was almost a foregone conclusion from the start because of the Democrats’ strong Senate majority, the Republicans played well the cards they had been dealt by engaging in a serious discussion about constitutional interpretation and jurisprudential philosophy.

Judicial opinions to follow.

Open Thread

AndrewHyman — Mon, 10 Aug 2009 00:38:40 -0400

Chat.

Legitimacy of Justice Sotomayor's Appointment

AndrewHyman — Sun, 09 Aug 2009 19:21:54 -0400

I suppose that some people (not me!) will now question Justice Sotomayor's legitimacy as a member of the Supreme Court, due to what they allege is President Obama's dubious eligibility. Here's what Andrew Sullivan wrote on July 29 about this:

It is our job to demand all the evidence we want or need. I know the electronic record is legit. I have no doubt that Obama has every constitutional right to be president. I think the Birthers are nuts. But there is no reason on earth that the original cannot be retrieved and shown. Jon Klein and CNN were wrong, and I retract my apology of yesterday. Obama promised total transparency. Where is it?

I agree with that statement by Andrew Sullivan entirely, even though he has since backtracked. On July 28, a news report in the Honolulu Advertiser stated:

One thing that remains unclear is whether Obama has a copy of the original 1961 Certificate of Live Birth, or if he would even be allowed to see it if he asked.

One would think that the American media would have sufficient resources to provide us with a simple answer to a simple question.

Sotomayor Confirmation Vote Will Probably Be Today

AndrewHyman — Thu, 06 Aug 2009 02:51:37 -0400

Looks like Judge Sotomayor will be confirmed today by the Senate. Of the 40 GOP Senators, 31 oppose, eight support (Alexander, Bond, Collins, Graham, Gregg, Lugar, Martinez, and Snowe), and one has not announced (Voinovich). Click on the name of any of the GOP Senators for their explanations....

Alexander, Barrasso, Bennett, Brownback, Bond, Bunning, Burr, Chambliss, Coburn, Cochran, Collins, Corker, Cornyn, Crapo, DeMint, Enzi, Ensign, Graham, Grassley, Gregg, Hatch, Hutchison, Inhofe, Isakson, Johanns, Kyl, Lugar, Martinez, McCain, McConnell, Murkowski, Risch, Roberts, Sessions, Shelby, Snowe, Thune, Vitter, and Wicker.

UPDATE: The final vote was 68-31. Congratulations to Judge Sotomayor, who will become Justice Sotomayor on Saturday. I hope the Supreme Court agrees to hear the appeal of her decision in Maloney v. Rice, and reverses it. She opined in that case that the right to keep and bear arms is not a "fundamental" right, without citing any Supreme Court decision for that particular conclusion, and without giving any significant explanation. She was very well-spoken during her confirmation hearing, but her opinions in cases like Maloney and Ricci lead me to believe that her actual work on the Court will be considerably legislative. Here's hoping I'm wrong.

UPDATE #2: Here is the statement of Senator Voinovich, who was the last GOP Senator to decide.

McCain To Vote "No" On Sotomayor Nomination

AndrewHyman — Mon, 03 Aug 2009 15:36:26 -0400

Sen. John McCain's statement is here. It's a very thoughtful and persuasive explanation.

I've posted links to statements by other GOP senators here.

Hat Tip: Bench Memos.