The Generalissima Dances

They're now underway, and it's clear that I was right.  The confirmation hearings are about as vapid as you might expect.

Anything the Supreme Court has ever decided is, the Generalissima tells us, "precedent" and "settled law."  No one has pressed her particularly hard, and she's declined to give any sort of meaningful answer, on whether or when "precedent" and "settled law" should give way - be sharply limited or broadly expanded or overruled.

The long-time professor won't "grade" the work of her she-hopes-will-soon-be colleagues, so we can't actually learn whether she thinks any of those matters of "precedent" and "settled law" were right.  (She does seem to think that Brown v. Board of Education was right and that Plessy v. Ferguson was wrong, but she hasn't been forthcoming about why that is.)

As for actual legal matters, she's happy to explain what the Court said in this or that opinion, but she's unwilling to say whether she thinks any of that is right, and since substantive matters may come before the Court for the first time or again (however unlikely that may be - re Bush v. Gore, for instance, which surely can't, she says the Court might someday again need to decide whether to intervene in an election), why she certainly can't express a view on them.

So, as always at these adventures, we learn nothing except how charming the candidate can be while refusing to answer questions.  On that basis, she's a winner.  She banters some (bits are witty); deflects coyly; blushed (slightly - according to scotusblog's live blogging - at one of her own self-deprecating jokes; can be tediously pedantic; and knows how to bob and weave.

Senator Sessions assailed her.  She did not give ground.  Others praised her, tossed her softballs, asked her to explain away things she'd previously said or written, and made their own speeches - often entirely without questions at the end.

She told us that the positions she took as an advocate (that is, in her role as Generalissima) weren't necessarily her own - though she convinced herself of them before taking her position arguing them in the well at SCOTUS, something every good advocate does.  She told us that although she worked for and deeply admired Thurgood Marshall, she is not he.  She told us that when she wrote for him or as an advisor to Bill Clinton or whatever, she was doing what they wanted, whatever she might have thought.  She told us that what she took from her father, a people's lawyer, was a love of the law.  She did not say that what she took from him was a love of the people or any understanding of how the law could be used.  She said that the way to ensure public respect for the Court was to recuse herself when proper.

When this isn't empty, it's fatuous.

Norm Pattis says this is all sufficient basis for a "bipartisan filibuster."

There is nothing inappropriate about answering an honest question with candor. Kagan's refusal to do  justifies a bipartisan filibuster of her of any vote on her nomination. When she sat before the American people yesterday looking like some sort of self-satisfied chipmunk she did nothing so much as offend.We should offer you lifetime employment based on that interview? I'm sorry, counsel, but I wouldn't hire you as a summer associate if yesterday's evasion is the best you can do. A Supreme Court justice is much like an ancient oracle, your utterances will define the terms and conditions of our lives. It is not too much to ask what you think of issues likely to come before you. I want to know the beating heart beneath the robe.

The he rattles off a list of things he wants to know.  (The list is, of course, not exclusive.  We could all add to it.)  They're things I want to know, too.  So does any Senator who's honest about it.  So should the Pres who nominates.  So should the American People.

They are, of course, things we won't learn.

And there's no excuse.

She doesn't want to "grade" the work of those she hopes will be her future colleagues.  I don't blame her.  It could make for uncomfortable days on the Court if she says that every one of the eight folks with whom she hopes to work for a couple of decades frequently act like dishonest charlatans whose work is ideologically driven, fatuous, and out of step with both the real world and any honest recognition of what the Constitution and the law are really about.

But so what?  She isn't running for Generalissima Congeniality.  She's running for a seat as Associate Justice on the Supreme Court of the United States.  Her efforts toward collegiality cannot trump the Senate's right to ask and learn before confirming.  And certainly should not trump the public's right to know.

And that whole, I can't express a view on any issue that may come before the Court (which is, of course, any issue) because it would be "inappropriate."  Why?  What would be inappropriate about it?

OK, I agree that it would be inappropriate to promise a particular vote in advance of the case being put before the Court.  When she must decide X, it should be on the specifics of the case, the record, the details of the question presented, the briefs and arguments, and the precisely relevant laws.  To promise now what she might say then would be wrong, because it means she won't do her job then.

But to say what she thinks?  Now?  About the issue itself?  In general terms?  There's no reason to refuse.

Justice Scalia has made clear his general view of the constitutional right to abortion.  So has Justice Ginsburg.  So have the rest of them.  Are they, thereby, disqualified from addressing the question when it next comes to the Court?  If they are, then they should disqualify themselves from just about every case.  The Court would be out of business in two years.

If a sitting Justice can express a view in one case and still vote in the next, surely a not-Justice can do that.

The reason to refuse is, of course, political.  It's harder to get confirmed if you've actually taken a stand on something.  You might just piss off a necessary supporter.  Though you might, equally, gain a surprise ally.  Depending, of course, on what your stand is.  Them's the breaks.

Is she qualified to sit on the Court?  Sure.  So am I.  So are you.  (Read the Constitution.  There are no qualifications for Supreme Court justices.)  Does she deserve to sit there?  Maybe.  But we don't know.  We won't learn.  She won't talk.  They won't make her.

I've said all this before.  I said it last year when the subject was Sonia Sotomayor's confirmation hearings.  I'll say it next time when the subject is whoever's.  I'm getting tired of it.

I'll be back doing it again, anyhow.

Questions for the General

We're down to the wire. The hearings begin in the morning.

Generalissima Kagan told us 15 years ago that confirmation hearings for Supreme Court justices should have substance. The senators should demand, and the nominees should provide, actual substantive answers on matters jurisprudential. The candidates should be, er, candid.  Don't hold your breath.

It seems a safe bet (though until it happens, it's only a bet) that she will disavow and dissemble. 

As Adam Liptak reports in the Times, William Rehnquist made the same point as Kagan in the Harvard Law Record in 1959.  Twelve years later, as a candidate for the Court facing questions from the Senate Judiciary Committee, he rejected his prior view.  Senator Phil Hart asked him if he had reconsidered what he wrote in that article.  Clearly, he had.

I think I did not fully appreciate the difficulty of the position that the nominee is in.

So there it is.  And so it is likely to be with the Generalissima.

And yet, one wishes.  (One might hope, but that seems too naive.)

Norm Pattis provides a set of questions he'd like the Senators to ask Kagan.  They cover her work as a trial lawyer (oops, there is none) and call for her views on specific cases that the Court has decided (oops, she won't have any or she'll keep them secret or they'll be so trivial that she might as well either not have them or keep them secret) and ask how Supreme Court justices should actually go about deciding things (oops, they don't decide things, they just recognize a ball or a strike or what Madison or Hamilton [which one depends on your view of the issue] would have said or voilà).

Then, as a counterpoint to her (presumed) avoidance of answers, Norm reports that Gerry Darrow promises to do more.

I'm looking forward to tomorrow. But I'll bet Kagan isn't. She locked up somewhere studying how to talk and not say anything. Haven't we had enough of that? I'd say we need a little frank talk for a change.

Meanwhile, indulging his own fantasy of substantive hearings, Doug Berman offers his own wish list.

Here are a half-dozen of the hundreds of criminal justice questions I would love to see asked of Kagan in light of some of the Supreme Court's recent criminal justice jurisprudence and her recent work as Solicitor General:

1.  Do you think the Supreme Court could and should take and decide more cases on the merits, and do you think it would be especially appropriate to take up more criminal justice issues?
2.   Do you think it is useful and appropriate for the Court to decide a significant number of criminal justice cases through summary disposition without full briefing and argument (as the Roberts Court has tended to do in recent terms)?
3.   Do you think criminal justice administration should be primarily the responsibility of the states and/or do you have concerns about the ever-growing size of the federal criminal justice system?
4.  What are your current views of the pros and cons of the modern exclusionary rule?
5.  What are your current views of the pros and cons of the modern death penalty?
6.   What are your current views of the pros and cons of the advisory federal sentencing system created by the Supreme Court through its Booker ruling?

Of course, his is as much fantasy as Norm's.  Even if he could get senators to ask, General K won't answer. 

Still, it's a fair parlor game. 

Herewith (thought I'd try sounding legal):

1. If it is not proper for you as a candidate for the Court to say whether you believe a recent decision of the Court was correct because you might be called upon to opine on a similar issue if confirmed, why is it proper for a judge or justice who voted in the prior case to sit on the future one?
2. Too obscure?  OK.  Justice Scalia has indicated that the Constitution is not offended by the execution of a factually innocent person assuming the person has had sufficient, albeit ultimately unavailing, procedural protections.  Do you agree or disagree?  Well, if you won't say, because the question might come before the court and it would be improper for you to have suggested how you'd answer, then isn't it also improper for Justice Scalia to sit on that case?  And also for Justice Ginsburg, who disagreed with him?
3. So then, was the Court right or wrong when it decided Citizens United?  Would you vote to overrule it?  Why or why not?
4. While you're answering that question, explain in detail how a justice should properly decide whether to overrule a precedent?  Give specific examples of how the Court decided properly and how it decided improperly.
5. This term, the Court held that when a lawyer is super-duper-grossly negligent in missing a filing deadline for a habeas corpus petition and the client acted with mega-diligence to prevent that and then to file his own pro se petition, it might be possible to excuse the delay and the client may still seek habeas relief.  But, the court said, there's no excuse for the delay and the can't can't seek relief if the lawyer was just negligent.  Can that possibly be right?  Why or why not?
6. Should we take as the basic presumption that people have the right to sue to enforce statutory and constitutional guarantees unless a proscription of the individual right to sue is absolutely clear or should we presume that individual have no right to sue unless it is absolutely clear that they may sue to enforce their rights?
7. On what legitimate basis, if any, should we afford absolute civil immunity to any government official for actions which are illegal or unconstitutional?  On what legitimate basis, if any, should we afford qualified civil immunity to any government official for actions which are illegal or unconstitutional?  If such immunity is improper, would you vote to reverse the decisions that allow it?
8. Is the Bill of Rights a contract to be narrowly construed or a guidepost to be understood expansively?
9. How much wood would a woodchuck chuck if a woodchuck could chuck wood?  Why are you more likely to try answering that question than any of the others?

Senators, the floor is yours. 

Here We Go Again

So Stevens has made it official. Obama gets another pick. The Republicans are taking the field in an effort to

1. Scuttle any nomination because as the Party of No that's their job;
2. Encourage Obama to appoint John Yoo thereby completing his transition into a kindler, gentler George W. Bush;
3. Rally the American people behind the idea that the court's job is to return to the Original Intent of the Framers of the Constitution: Economic Liberty and Freedom from British Tyranny for Rich White Guys and Oppression for Everyone Else;
4. Convince the American people that their only hope for the future is to ensure that no Democrat ever again holds elective office except maybe in San Francisco;
5. Prevent Obama from appointing a communist baby killer who favors requiring public school children to be taught exclusively by homosexual teachers who refuse to recite the pledge of allegiance and who is secretly in league with Al Qaeda to ensure the overthrow of the United States and the introduction of Sharia law here - you know, someone like Obama himself; or
   
6. Get Obama to appoint someone they like and then demonstrate their bipartisan spirit by (choose one):

• Voting for the person
• Voting against the person

Norm Pattis has begun beating the drum for Obama to appoint a trial lawyer. His plaintive cry:

Is it too much to ask for one lawyer who wakes up every morning, looks a frightened client in the eye, and says, simply, "I'll do my best"?

He's right, of course. One wishes for such a person. Someone who's defended real people against the power of the state, who's stood up to powerful corporations, who has devoted her life actually to fighting for individuals.

Equally, he's wrong, of course. It is, almost certainly, too much to ask. With Sotomayor, whose experience as an actual lawyer was in enforcing the power of the state against individuals, we came as close as we're likely to come to such a Justice.

Of Brian Tannebaum's fantasy of Greenfield for SCOTUS? Sure. As soon as Eric Turkewitz actually gets appointed legal blogger for the White House.

I've never met Obama. I have no inside information. But the guy's not a radical no matter what Newt Gingrich says. He's shown no inclination to appoint to much of anything anyone who looks controversial. That means a safe pick.

• It means someone the Republicans won't hate however much they claim they do and even if they won't vote for confirmation.
• It means someone who's most radical mantra is likely to be "with all deliberate speed."
• It means someone who believes in the American Dream because "it darned well worked for me and everyone I hang out with."
• It means someone who can look at the Senate Judiciary Committee and say with a straight face:

  I have no ideas that are relevant to being a judge and never have had any; I understand that the job of being a Justice is like any other job that requires some arcane knowledge but no insight; I recognize that the mainstream of constitutional interpretation involves not actually interpreting it but understanding that the Constitution means what it says. Except for parts of the First, Second, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments and all of the Ninth and Tenth Amendments, except maybe not the Tenth all the time, and I'm actually on both sides of the question when it comes to the First and Second.
  

The Democrats will praise that person with the adopted persona for its wisdom. The Republicans will say they don't believe the person is telling the whole truth. There will be lots of posturing.

Let the Games Begin.

THE HEARINGS YET AGAIN

So now they're blathering again. They're all saying what you knew they would, of course. (Were there any doubt, they've all issued statements explaining how they would vote.)

Still, you do wish someone would break ranks and say something unexpected. But of course the exercise is designed to be tedious and, ultimately, meaningless. That said, it's probably worth saying one more time that the job of justice is more complex than either Judge Sotomayor (she ain't a justice yet) or any of the senators were prepared to acknowledge.

In that spirit, it's worth reading this column by Burt Neuborne, "Judging Is Both Robotic and Discretionary." He writes:

Surely, it would have been a good idea to probe how Justice Sotomayor would approach a case for which clear guidance does not exist. But no senator wanted to go there.

Neither did she.

As I'm typing this, Senator Spector is explaining how wonderfully these hearings educate the public. That's so obviously false it's hardly worth mentioning. But it's a damn shame.

No cause for optimism

You watch the hearings hoping for a hint that you're wrong.

Maybe, just maybe, Judge Sotomayor really does believe that the Constitution can be read expansively even if it's immutable. Maybe, just maybe, she believes that there is some possibility that her life experiences provide more than a commitment to gather facts before figuring out which law applies to them. Maybe, just maybe, she can recognize that it's sometimes necessary to figure out what the right question is in order to determine which precedent to apply.

Maybe she's not the mechanistic technocrat she claimed to be.

And maybe she really does believe that we have an inclusive Constitution designed to protect the people from government and to ensure the protection of civil rights and civil liberties.

But you sure couldn't tell it from the hearings. And you can't tell it from her opinions. So where do we look?

Do we join what Jeff Sessions seems to think and believe that a couple of random comments in her speeches reveal her true judicial philosophy which she's been hiding and refusing to follow for all her years as a prosecutor and a judge? That is, do we imagine that she's created a record as a conservative for decades in the hope that she'd someday get to the Supreme Court and become a raging radical? Alas, nothing suggests that she's either that wily or that stupid.

She was nominated by a President who's apparently willing to endorse indefinite detention for the prisoners at Gitmo, who thinks the Supreme Court got it wrong when it said you can't execute people who didn't commit homicide, and who despite pledging to end Don't Ask, Don't Tell, has not done so and filed a brief (available here) urging the Supreme Court to refuse to consider whether the rule denies the constitutional rights of gays, lesbians, and bisexuals (story here). Despite considerable huffing and puffing by the Limbaughs and O'Reillys, Obama has not shown himself to be a radical, not even a full-throated liberal. He's certainly given no hint that he's a committed civil libertarian. So why would we expect that he'd nominate for SCOTUS a judge who's more open to rights and liberties than he?

We might have expected him to nominate one who's a bit less of a technocrat than Sotomayor portrays herself. We might have expected him to nominate one who actually does believe that there are some small number of cases where recognizing the human dimension of the harm the government can cause matters. (After all, he said that was what he was doing.)

And maybe, just maybe.

But there's sure no hint of it.

THE HEARINGS

Our next Supreme Court Justice, Sonia Sotomayor, sitting patiently as the senators blather on (Slate has this great chart comparing how many minutes she speaks with how many the senators do), was finally asked about the death penalty near the end of the day yesterday. In response, and to nobody's particular surprise, she lied.

The Q and A came from Senators Graham and Durbin and are mixed in with questions about abortion and terrorism. Graham focuses on the Puerto Rican Legal Defense and Education Fund, of which Sotomayor was a board member before becoming a judge, and on the by now infamous memorandum she signed and which urged the Fund to urge then Governor Carey to oppose reinstating the death penalty in New York.

GRAHAM: And quite frankly, that's, you know -- lawyers are lawyers. And people who have causes that they believe in have every right to pursue those causes.

And the fund, when you look -- you may have been a board member, but I am here to tell you, that file briefs constantly for the idea that taxpayer-funded abortion was necessary, and to deny it would be a form of slavery, challenged parental consent as being cruel.

And I can go down a list of issues that the fund got involved in, that the death penalty should be stricken, because it has -- it's a form of racial discrimination. What's your view of the death penalty, in terms of personally?

SOTOMAYOR: The issue for me with respect to the death penalty is that the Supreme Court, since Gregg, has determined that the death penalty is constitutional under certain situations.

GRAHAM: Right.

SOTOMAYOR: I have rejected challenges to the federal law and its application in the one case I handled as a district court judge, but it's a reflection of what my views are on...

GRAHAM: As an advocate...

SOTOMAYOR: ... the law.

GRAHAM: As an advocate, did you challenge the death penalty as being an inappropriate punishment, because of the effect it has on race?

SOTOMAYOR: I never litigated a death penalty case personally. The fund...

GRAHAM: Did you ever sign a memorandum saying that?

SOTOMAYOR: I signed the memorandum for the board to take under consideration, what position on behalf of the Latino community the fund should take on New York State reinstating the death penalty in the state.It's hard to remember, because so much time has passed...

GRAHAM: Yes, well...

SOTOMAYOR: ... in the 30 years since...

GRAHAM: We'll give you a chance to look at some of the things I'm talking about, because I want you to be aware of what I'm talking about.

Let me ask you this. I've got 30 seconds left. If a lawyer on the on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?

SOTOMAYOR: An advocate advocates on behalf of the client they have. And so that's a different situation than how a judge has acted in the cases before him or her.

GRAHAM: OK. And the only reason I mention this, Judge, is that the positions you took or this fund took, I think, like the speeches, tell us some things. And we'll have a chance to talk more about your full life, but I appreciate the opportunity to talk with you.

SOTOMAYOR: Thank you, sir.

Then it was Senator Durbin's turn, and after a few minutes of throat clearing he pursued the topic.

A book which I greatly enjoyed, I don't know if you ever had a chance to read, "Becoming Justice Blackmun" a story of Justice Blackmun's career and many of the things that happened to him. Now, late in his career, he decided that he could no longer support the death penalty. And it was a long, thoughtful process that brought him to this moment.

And he made the famous statement, maybe the best-known line attributed to him, in a decision, Collins, vs. Collins, "From this day forward, I no longer shall tinker with the machinery of death" The opinion said, and I quote, "Twenty years have passed since" and this is 1994.

"Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency, or not at all. See Furman vs. Georgia and despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake."

Judge Sotomayor, I know that you've thought about this issue. Senator Graham made reference to the Puerto Rican Legal Defence Education Fund memo that you once signed on the subject. What is your thought about Justice Blackmun's view that, despite our best legal efforts, the imposition of the death penalty in the United States has not been handled fairly.

SOTOMAYOR: With respect to the position the fund took in 1980-81 with respect to the death penalty, that was, as I noted, a question of being an advocate and expressing views on behalf of a community on a policy choice New York State was making: Should we, or should we not reinstitute the death penalty? As a judge, what I have, and look at and realize is, that in 30 years, or 40, actually, there has been -- excuse me, Senator. Oh, I'm sorry.

DURBIN: It's all right.

SOTOMAYOR: ... enormous changes in our society, many, many cases looked at by the Supreme Court addressing the application of the death penalty, addressing issues of its application and when they're constitutional or not. The state of this question is different today than it was when Justice Blackmun came to his views.

As a judge, I don't rule in an abstract. I rule in the context of a case that comes before me and a challenge to a situation and an application of the death penalty that arises from an individual case.

I've been and am very cautious about expressing personal views since I've been a judge. I find that people who listen to judges express their personal views on important questions that the courts are looking at, that they have a sense that the judge is coming into the process with a closed mind, that their personal views will somehow influence how they apply the law.

That's one of the reasons why, since I've been a judge, I've always been very careful about not doing that. And I think my record speaks more loudly than I can...

DURBIN: It does.

SOTOMAYOR: ... about the fact of how careful I am about ensuring that I'm always following the law and not my personal views.

DURBIN: Well, and the one death penalty case that you handled as a district court judge, United States vs. Heatley, this is after, in 1983, I believe it was or 1981, I'm sorry, that you signed on to the Puerto Rican Legal Defense Education Fund memo recommending that the organization oppose reinstituting the death penalty in New York.

After you'd done that, some years later, you were call on to rule on a case involving the death penalty. Despite the policy concerns that you and I share, you denied the defendant's motion to dismiss and pave the way for the first federal death penalty case in Manhattan in more than 40 years.

Now, the defendant, ultimately accepted a plea bargain of life, and you rejected his challenge to the death penalty and found that he'd shown no evidence of discriminatory intent. So that makes your point. Whatever your personal feelings, you, in this case, at the district court level, ruled in a fashion that upheld the death penalty.

I guess I am trying to take it a step beyond. And maybe you won't go to where I want to take you, and some nominees don't. But I guess the question that arises in my mind is how a man like Justice Blackmun, after a life on the bench, comes to the conclusion that, despite all our best efforts, the premise of your 1981 memo is still the same; that, ultimately, the imposition of the death penalty in our country is too arbitrary. Minorities in America today account for a decision proportionate 43 percent of executions.

That's a fact since 1976. And while white victims account for about one-half of all murder victims, 80 percent of death penalty cases involve victims who are white. This raises from obvious questions we have to face on this side of the table. I'm asking you if it raises questions of justice and fairness on your side of the table.

SOTOMAYOR: In the Heatley case, it was the first prosecution in the Southern District of New York of a death penalty case in over 40 years.

Mr. Heatley was charged with being a gang leader of a crack and cocaine enterprise who engaged in over -- if the number wasn't 13, it was very close to that, 13 murders to promote that enterprise.

He did challenge the application of the death penalty charges against him on the ground that the prosecutor had made its decision to prosecute him and refused him a cooperation agreement on the basis of his race.

The defense counsel, much as you have, Senator, raised any number of concerns about the application of the death penalty. And in the response to his argument, I held hearings not on that question, but on the broader question of what had motivated -- on the specific legal question, what had motivated this prosecutor to enter this prosecution and whether he was denied the agreement he sought on the basis of race. I determined that that was not the case and rejected his challenge.

With respect to the issues of concerns about the application of the death penalty, I noted for the defense attorneys that, in the first instance, one back question of the -- the effects of the death penalty, how it should be done, what circumstances warrant it or don't, in terms of the law, that that's a legislative question.

And, in fact, I said to him -- I -- I acknowledged his concerns. I acknowledged that many had expressed views about that. But that's exactly what I said, which is, I can only look at the case that's before me and decide that case.

DURBIN: And this is a recent case before the Supreme Court I'd like to make reference to, D.A.'s Office vs. Osborne, involving DNA. It turns out there are only three states in the United States that don't provide state legislative access to DNA evidence that might be -- might exonerate someone who is in prison.

I am told that, since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, "We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence."

So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?

SOTOMAYOR: The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you.

There's the lie. (Actually, most of the answers I've quoted here are lies, but that last one is what set me off on this particular jag.)

I don't know what Sotomayor thinks about the death penalty. My guess, and it's only that, is that if pressed in some wholly off-the-record conversation she'd be a grudging supporter of the if-it's-done-right school. But I know that she doesn't believe the Court only addresses the "particular act by a state in a particular case."

Now this isn't rocket science.

Brown v. Board of Education did not simply decide "whether a "particular act by a state in a particular case" is constitutional. Instead, while building on a series of earlier cases finding various discriminatory practices unconstitutional, Brown did a much broader thing - it declared an idea, that public school education can be separate but equal, to be false and said, in effect, no state may act upon that false idea, and every state that has been acting on it must stop.

Roe v. Wade did not simply decide whether Jane Roe could legally get an abortion or even whether the Texas abortion law at issue was constitutional. It declared that women have a right, nationally imposed one, if you want to look at it that way, to abortions. Period.

And while we all know that Obama claims there was no litmus test for the Court, Sotomayor would never have made it through the selection process if she actually thought Brown or Roe was wrong.

But right or wrong, those decisions (and I could have chosen from dozens of others, but I'm not always so certain of Sotomayor's beliefs) are examples of the Court reaching far beyond the particulars. And, in fact, everyone wants it to.

Take the Second Amendment (about which I'll have a lot to say one of these days that is likely to irritate almost everyone). In District of Columbia v. Heller the Court said that the D.C. law banning handgun possession violated the Second Amendment which protects an individual, but apparently not unlimited, right to bear arms. Cases are working their way up to the Court now asking it to resolve whether the same rule applies to the states. The individual case they eventually take in will be from one state about its one law. But the answer will apply to all states and declare something about how their laws must operate.

That's what the Court does.

Here's the syllogism: Sotomayor knows that or she's a fool. She's not a fool. Therefore she knows that.

Here's the next part. If she knows that, she lied under oath to the Senate. As did Justices Roberts and Alito and Thomas. And Kennedy, Ginsburg, and Breyer. And Souter, the man she's going to replace. They all do these days. Ever since Bork, who pretty much told the truth.

Really, we ought to either shut this system of sham hearings down or find a way to insist that they have some substance.

ODDS & ENDS

I'm back from several days at a death penalty defense seminar and the preparation of a major brief on Ohio's sex offender law. Much has happened, and since I can't write at full length about everything, it's time for another episode of odds and ends.

*********

This morning, at 10 a.m., the State of Ohio intends and expects to put John Fautenberry to death. They'll call it an execution, which is correct. It's also correct to call it an aggravated murder. In any event, it's almost surely going to happen.

They'll kill him with a combination of drugs that, according to the only judge to rule on the matter, violates his right - established by the Ohio legislature - to a painless death. (Judge's opinion here.) They'll do the same thing to Marvallous Keene on July 21. They've got plans for seven more, one a month, through February. You can expect more in March and April.

It's almost certain that one or more of the scheduled killings won't happen. Either a court will step in at some point or the Governor will grant someone clemency. (Hey, it could happen.) But the numbers are daunting. Ohio has already killed more people than any other state outside the South, and it seems determined to pick up the pace.

For what little it's worth, there's a certain irony in the Keene execution. As it violates a court order that Ohio stop killing with three drugs and switch to a single, massive, dose of barbiturate, Keene's execution will violate a court order, violate Keene's constitutional rights, and be (it now appears) the one thousandth execution by lethal injection in the United States.

Kinda makes you proud to be a Buckeye. Or not.

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As a reminder of a particular sort of horror in criminal justice, last week Ronald Kitchen and Marvin Reeves were freed by the State of Illinois. They each served more than 20 years for the killing of two women and three children that the state now concedes they don't have enough evidence to justify a trial. (Story here.) By the calculation of the Death Penalty Information Center they are the 134th and 135th exonerations from death row since 1973 (press release here).

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Balls and strikes and Sonya Sotomayor.

Confirmation hearings begin. The big question this year seems, for a change, not to be whether Roe v. Wade is the law of the land that deserves some degree of respect simply because it was decided and is a major front in the culture war. Rather, this year the question is whether justicing is a purely mechanical act of looking at the Constitution and the issue in question and saying "Yea" or "Nay." The Republicans insist it is, and that any contrary perspective is entirely out of the mainstream of American thought, as we can tell because if 5 of the 9 current Supreme Court Justices say so, then the other 4 are entirely misguided.

It's a silly claim, of course, and nearly everyone making it surely understands that. But it's not without some rhetorical power when stated with declaratory force and without apparent irony.

What it most reminds me of is a problem with the Ohio Constituion. The Supreme Court of Ohio routinely tells us that the Ohio Constitution provides important protections for Ohioans.

The Ohio Constitution is a document of independent force. In the areas of individual rights and civil liberties, the United States Constitution, where applicable to the states, provides a floor below which state court decisions may not fall. As long as state courts provide at least as much protection as the United States Supreme Court has provided in its interpretation of the federal Bill of Rights, state courts are unrestricted in according greater civil liberties and protections to individuals and groups.

But when it comes right down to it, maybe not so much.

Here's an example of how it works. In State v. Robinette (1995), the Ohio Supreme Court held that both the federal and Ohio Constitutions require that when the purpose of a traffic stop is completed, police may not continue questioning the driver they stopped without first informing the driver that he is free to leave. The state appealed that decision to the United States Supreme Court which reversed it. In Ohio v. Robinette (1996) the Court said that whatever the Ohio Constitution might require, the Fourth Amendment required no such thing.

Back the case went to the Ohio Supreme Court which said (1997), though not in these words, "Gosh, we must have misunderstood the Ohio Constitution. Since we wrongly figured the U.S. Constitution required cops to tell people they were free to leave, we must have been wrong when we figured that the Ohio Constitution required it, too. Thanks to the U.S. Supremes for correcting our understanding of our document."

The Ohio Constitution, no less than the U.S. Constitution, means at any given moment what a majority of its high court justices think it does. Figuring out what that should be is, as I have said before (here, for instance), a whole lot more complicated (maybe not harder, but more complicated) than just observing whether a pitched ball was in the strike zone at any point.

All of which is essentially a digression from what I want to say which is that Sotomayor demonstrated a mastery of the basic rule of these hearings: Listen politely while the Senators pontificate and then say something so profoundly pedestrian that nobody can disagree with you although it's entirely content free. In this case, she said, in her opening statement:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Can anybody possibly think that's wrong?

Decide cases with faithful adherence to the law? That really is what every judge endorses as the way to do the job.

Understand the positions and arguments before you? Does anybody, anywhere, think judges should attempt to misunderstand them?

I'm far from the first person to compare Senate confirmation hearings with kabuki theater, but the analogy is apt. And since we know in advance pretty much all we will learn: She has a compelling life story which helps her understand the positions of the parties before her and helps her understand the real world consequences of her decisions, but which is wholly irrelevant to the decisions she makes - as are their real world consequences.

Well, why do we actually bother? Are we hoping that there will be another Robert Bork who actually had a judicial philosophy and was willing to discuss it and its consequences? Do we imagine that an Anita Hill will step forth and rivet us to the television with sordid personal accusations? Might we not let the Senators make their speeches in private without media coverage? Oh, yeah. That's why we have the hearings.

They really do present an opportunity to educate the American people on our judicial system. And they really do ignore that opportunity.

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Here's an example of why judging isn't just calling balls and strikes.

His name is Troy Davis. Maybe he's innocent of the crime for which the State of Georgia desperately wants to kill him. Certainly, the evidence of his guilt, the evidence that got him on death row, has pretty much evaporated. Most of the witnesses against him have recanted their testimony. Another person has apparently confessed to the crime.

Maybe he did it, but tried today, by competent attorneys who know what we know now, he would almost surely be found not guilty. At the least, there are serious concerns.

His case is before the Supreme Court now. They granted a stay of his execution a couple of months ago while they decided whether to hear the case. It's a decision they didn't make before their summer recess, so Davis gets to live until at least the fall.

Oh, the question: Does it matter if he's innocent? Specifically, is the Constitution offended by the execution of a factually innocent person. Oddly, the Court has never said. As I've noted before, Justice Scalia is clear (here) that he believes there to be no constitutional impediment to executing "an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate."

It's true that the Fifth Amendment says that nobody can be deprived of life without "due process of law." But is it a deprivation of that process to kill the innocent? When do we become sufficiently offended?

It ain't just balls and strikes folks.

CONFIRMATION HEARINGS

Let's talk about the upcoming Senate hearings on whether Sonia Sotomayor will be confirmed as an Associate Justice of the Supreme Court.

Today's Newswire from law.com, includes this article from the National Law Journal exploring issues members of the Senate Judiciary Committee should, but almost certainly will not, vigorously pursue with Judge Sotomayor during the confirmation hearings. It's a useful reminder that her views (and votes) on the hot button social issues that Senators get points for asking about may well have less day to day consequence than what she'd say about less sexy topics like business regulation, ERISA, criminal procedure, and standing (not a complete list).

We all know how the hearings will go. The Senators from New York will explain that she's the finest person ever to be nominated. A few law professors and fellow judges will weigh in. Then it will be time for the real show. Judge Sotomayor will read a prepared statement in which she explains how honored she is and what a fine and decent judge she'll make and so forth. Then it will be time for the ostensibly serious business.

Cue the kleig lights:

Senator ___________ pontificates for a bit, then asks a complicated, nearly incoherent question, which pared down to its essence is, "Will you overrule Roe v. Wade or declare the death penalty unconstitutional or something?" Sotomayor refuses to answer because someday she might actually have to answer the question as a Justice and therefore it would be improper for the members of the Senate or for the American people to know what she might do before deciding whether she should be allowed to do it. [Note that the Supreme Court has already said that people seeking judicial positions via election have an absolute First Amendment right to answer such questions as long as they don't actually promise how they'll vote. Republican Party of Minnesota v. White, here.]

Democratic Senators ask if she'll apply the law fairly, without allowing any personal views she might have to lead her to make decisions at odds with the Constitution. She agrees to obey the Constitution.

Republican Senators demand that she repudiate any personal views she might have and agree that well-programmed computers will surely be better justices than she could ever be because the Constitution is entirely clear and only a fool could think it actually needs to be interpreted rather than applied. She finesses the answer to that one.

Everyone agrees that courts shouldn't make policy and that wise, old, white millionaires are just as able as poor Latinas to make good decisions.

Sigh.

You know, I care how she'll vote. And I've got my hobby horse issues, too. But if you're looking for the Platonic ideal of a Justice (as opposed, say, to seeking the Justice you'd most like to have voting in any given case), what you want to talk about is judicial philosophy, intepretive methodology, analytical models, jurisprudence. And, of course, wisdom.

Don't hold your breath.