Justice John Paul Stevens to retire from court this summer

April 9, 2010

It’s now official that Justice John Paul Stevens will retire this summer, the AP reports. Obama gets to pick another radical Leftist racist for Supreme Court

Wood is a hard-Left judicial activist and aggressor on culture-war issues:

Wood is clearly ready to invent a constitutional right to same-sex marriage: “The right not to have the State prescribe a set of acceptable spouses, in the absence of the kind of powerful reason it would have for incest laws or laws designed to protect children, is implicit in the concept of liberty.” (Wood, “Reflections on the Judicial Oath” (8 Green Bag 2d 177, 184 (2005).)

Wood evidently believes that the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause and that a Supreme Court ruling permitting that phrase would “announce that the United States is a nation that has adopted monotheism as its official state dogma.” (See my Part 5 post, point 3 here.)
Wood believes that it’s proper for the Supreme Court to revise the meaning of constitutional provisions to reflect contemporary international and foreign practices. (See my Part 5 post, point 2.) As Harold Koh’s transnationalism shows, that approach threatens cherished First Amendment rights of free speech and religion at the same time that it leads to the invention of new rights that entrench the agenda of international leftist elites.
No judge whom I’m aware of is more extreme than Wood on abortion. Her defiance of the Supreme Court’s mandate in NOW v. Scheidler (and her incurring successive 8-1 and 8-0 reversals by the Court) ought alone to be disqualifying. In addition, Wood has (in dissent) voted to strike down state laws banning partial-birth abortion and (again in dissent) voted to strike down an Indiana informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey.
Wood is aggressive in pursuing her ideological agenda. Her willful lawlessness on remand in NOW v. Scheidler is the starkest example. But consider also her behavior at oral argument in a case presenting the question whether a law school violated the rights of a Christian Legal Society chapter by revoking its official status as a student organization because of the chapter’s membership policies. Wood viciously maintained that the CLS chapter viewed homosexuals as “less than fully human,” conspicuously turned her back on CLS counsel as he explained CLS’s orthodox Christian beliefs, and turned back around to exclaim “Goodness!”

In his Notre Dame speech last week, President Obama encouraged “fair-minded words” and opposed “reducing those with differing views to caricature.” That’s hardly what Wood’s conduct in the CLS case demonstrates.

More broadly, President Obama says that he wants to find “common ground” on abortion and other culture-war issues, and he says that he opposes same-sex marriage. If so, he wouldn’t nominate Diane Wood to the Supreme Court.

Supreme Court candidate Diane Wood:

In the related area of military justice, the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business.
via bench.nationalreview.com

On Elena Kagan, see this summary post and the linked materials.

First, the Left is hungry for a liberal lion who will use the confirmation hearing to make a compelling public case for the so-called “progressive” vision of constitutional interpretation. Its hunger is all the greater after last year’s confirmation hearing in which now-Justice Sonia Sotomayor demoralized and disgusted her supporters by trying to disguise herself as a judicial conservative.

Second, far from being a liberal lion, Kagan has (as these New York Times articles put it) “provided few clues about where she stands on the great legal issues of the day” and has established a “reputation for finding the middle on difficult legal and political issues.” (One notable exception to her cryptic record is the topic of gay rights, where Kagan has supplemented her academic record of extremist rhetoric and utterly implausible legal analysis by subverting, in her SG capacity, the Don’t Ask, Don’t Tell law and the Defense of Marriage Act.)

Third, on issues of executive power and national security, Kagan is far from the Left. For example, as the second of the hyperlinked NYT articles notes, at her confirmation hearing for Solicitor General, there was “no daylight” between Kagan and Republican senators on “the president’s broad authority to detain enemy combatants.” (See more examples in this previous post of mine.)

Fourth, in her briefing of the Citizens United campaign-finance case, Kagan abandoned the actual hard-Left rationale of the Court’s 1990 ruling on corporate-speech restrictions in Austin v. Michigan State Chamber of Commerce and thus paved the way for the conservative Court majority to overrule Austin in Citizens United.

Fifth (and much to her credit in my eyes), Kagan has displayed genuine admiration and appreciation for Justice Scalia as well as a liberality of spirit towards conservative law professors and students at Harvard.

Sixth, if she were to make the transition from SG to the Supreme Court, Kagan would face extraordinary recusal obligations during her initial two or three years on the Court, with those recusal obligations disproportionately concentrated in matters of importance to the Obama administration. Among other things, Kagan would have to disqualify herself from all cases in which she authorized an appeal from an adverse district-court ruling (and virtually all appeals from adverse district-court rulings require SG approval). She would also likely have to disqualify herself from challenges to legislation supported by the Obama administration (including, if it is enacted, Obamacare) if she offered pre-enactment advice on the legal questions at issue. In the event that the other eight justices were divided, her recusal would mean that conservative results in the courts below would stand. Perhaps more importantly, Justice Kennedy might well be much more open to the conservative approach in such cases, precisely in order to avoid an unproductive deadlock.

With 59 Democrats in the Senate, it’s a safe operating assumption that virtually anyone President Obama nominates to the Supreme Court will be confirmed. That makes it all the more striking that the Left shows no signs of willingness to fight for one of its favored candidates to be nominated.

she would be largely indistinguishable from Ruth Bader Ginsburg

via bench.nationalreview.com

And some longshots (the first two of whom would be incredibly incendiary): Harold H. Koh, Deval Patrick, and Cass Sunstein.


Supreme Court ruled corporations can campaign for candidates

January 27, 2010

Unions can now literally buy elections now? Soros is happy. he won this. We bought his rhetoric that large companies are on the right. Large corporations go right to the left. this is a red herring. you threw out your rights on a technicality and the left is laughing their asses off at you and your orthodoxy. When you think only in terms of what binary political poles you are given it is very easy to be deceived. People that take advantage of you count on you to be so dogmatic. Corporations are not people. this isn’t baseball. Conservatism isn’t a sports team… it is merely a mind set that sometimes is just and sometimes is not good for the people.

  • Reversing 63 years of restrictions on free speech, the Supreme Court ruled that corporations could, indeed, directly campaign for the candidates of their choice, causing Obama – clearly not one of the candidates of most of their choices – to term the ruling “devastating.”

  • The Bureau of Labor Statistics announced that union membership in the U.S. had plummeted a staggering 10 percent in 2009, bringing it to an all-time low of just 7.2 percent of all private sector workers – and further debasing the value of Obama’s cozy relationship with union bosses.

At issue is whether corporations, unions and issue advocacy organizations should be allowed to use unlimited amounts of money from their treasuries on independent political expenditures in support or opposition of a candidate.

Today’s oral arguments focused, in part, on the tension between the First Amendment freedom of speech rights and congressional efforts to limit the influence of special interests that have millions of dollars to spend on speech. While corporations and unions are prohibited from making independent political expenditures, individuals may freely do so.

“Robust debate about candidates for elective office is the most fundamental value protected by the First Amendment’s guarantee of free speech,” said Theodore Olson, the lawyer for the conservative nonprofit corporation Citizens United and former President George W. Bush’s solicitor general, during oral arguments. “Yet that is precisely the dialogue that the government has prohibited if practiced by unions or corporations, any union or any corporation.”

The first big impact of the Supreme Court’s decision lifting restrictions on certain corporation campaign spending may be at the American Civil Liberties Union, which, after years of opposing restrictions on free speech grounds, is considering whether to reverse course and endorse government limits on money in politics.

The ACLU has long opposed government limits to how much a donor can give to a political campaign or spend airing advertisements on an issue during an election. On this point, the ACLU has been in agreement with conservative organizations that believe money contributions are a form of political speech and deserving of First Amendment protection. It has been at odds with many liberal organizations, which have argued money in politics must be strictly limited so that rich organizations and individuals don’t wield outsize influence.

But Thursday’s Supreme Court decision in Citizens United v Federal Election Commission, which would enable corporations to spend freely on political causes, is forcing the ACLU to address what one internal memo describes as a “Skokie moment,” a reference to the controversy in which the organization defended the right of American Nazis to march in the Chicago suburb of Skokie. The moment is often seen as one of the acid tests of the ACLU’s willingness to stick to its First Amendment principles.

The First Amendment, opening article of the Bill of Rights, says that Congress “shall make no law . . . abridging the freedom of speech, or of the press . . .” It was cited in Thursday’s Supreme Court’s decision, which was is in accord with the ACLU’s traditional position that the government should keep out of regulating money in politics. The organization had filed a brief in support of the winning side in the case. But concern that the Supreme Court ruling will fundamentally alter American democracy has ignited within the union an intense debate that was aired on Saturday at the regular quarterly meeting of the 83-member board of directors and in interviews with this reporter. The board on Sunday sent the issue to its special committee on campaign finance to mull the impact of Citizens United.

“The ACLU’s version of democracy is from the ground-up,” one civil rights lawyer, David Gans, on Saturday told the ACLU’s board, which was assembled downtown at One New York Plaza. “Now Exxon Mobil can spend 2% of its money and blow that all up.”

Mr. Gans was one of several attorneys invited to the board meeting to debate whether the ACLU should change its position on money in politics. Another, Burt Neuborne, also urged the ACLU to change its policy, saying that any effort to salvage campaign finance regulation in the wake of the Supreme Court ruling would face trouble “if the ACLU says it’s against the First Amendment.”