Jay Reding.com

President Obama has picked Judge Sonia Sotomayor of the Second Circuit as his nominee to replace David Souter as Associate Justice of the United States Supreme Court. Judge Sotomayor was considered the front-runner for the spot, along with Judge Diane Wood, Homeland Security Secretary Janet Napolitano, and Solicitor General Elena Kagan.

Ilya Somin has a detailed critique of Judge Sotomayor’s record and finds her minimally qualified. As he puts it:

…[H]er record is far less impressive than that of most other recent nominees, such as Roberts, Alito, Breyer, and Ginsburg. Each of these was a far more prominent and better-respected jurist than Sotomayor, and Breyer and Ginsburg were leaders in the development of their respective fields of law. Sotomayor also seems far less impressive than Diane Wood and Elena Kagan, reputedly her top rivals for this nomination. The current nominee’s qualifications are likely better than Harriet Miers’ were; but Miers’ nomination failed in large part because of her relatively weak resume. Among the current justices, probably only David Souter and Clarence Thomas had professional qualifications similar to or worse than Sotomayor’s.

It would be hard to find a less qualified nominee than Harriet Miers, but Sotomayor does not strike me as a strong candidate. She is, to be sure, qualified for the position, but a seat on the Supreme Court is the pinnacle of the American legal profession. The Supreme Court has housed some of the greatest minds in the practice: Oliver Wendell Holmes, Felix Frankfurter, Hugo Black, Robert Jackson, and even the current Court has incredibly talented judges such as Stephen Breyer (on the “left”) and Antonin Scalia (on the “right”). Does Sotomayor match up with those legal minds? Her record, at least on a cursory glance seems to suggest not.

Judge Sotomayor is not widely considered to be an expert or leading light on a particular field of law, as Stephen Breyer was in administrative law. She has not shown the intellectual caliber of someone like Antonin Scalia or Ruth Bader Ginsberg. Instead, she seems to have been picked because she is a female Hispanic with an interesting life story that meets the basic qualifications.

Now, that is not to say that Judge Sotomayor is an intellectual lightweight—generally one does not get nominated for a Circuit Court of Appeals or even graduate from a top-tier law school without possessing a strong intellect. Moreover, Judge Sotomayor is no less qualified than the Justice she is replacing—which is damnation by faint praise given that David Souter was the least intellectually gifted and least competent member of the Court.

It should not be surprising that Obama picked a left-wing candidate. That part was a given. President Obama was not going to pick out a candidate more conservative than the decidedly liberal Justice Souter. Her personal ideology should not be at issue: Justices Breyer and Ginsberg were both strongly liberal judges, but were well-qualified nominees whose nominations were consented to by the Senate in a bipartisan manner.

However, as Prof. Somin adeptly points out, her judicial philosophy is a legitimate reason for combatting her nomination:

I am also not favorably impressed with her notorious statement that “a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Not only is it objectionable in and of itself, it also suggests that Sotomayor is a committed believer in the identity politics school of left-wing thought. Worse, it implies that she believes that it is legitimate for judges to base decisions in part on their ethnic or racial origins.

The role of a judge is to dispassionately and fairly apply the law without preference or bias. It remains an open question whether Judge Sotomayor will follow the law or undermine the rule of law by giving preference to those based on gender, race, class, or her own personal feelings. If it is the case that she will, respect for the rule of law demands that the Senate refuse to consent to her nomination.

Judge Sotomayor was not the worst pick that President Obama could have made (Secretary Napolitano was the least qualified of the four contenders), but Judge Sotomayor was not as qualified as Judge Wood or Elena Kagan. However, politically, Sotomayor may be the more confirmable.

In the end, President Obama could have picked a legal heavyweight—but instead he picked someone based largely on personal rather than judicial qualities. Judge Sotomayor may be qualified to sit on the Court, but it is unlikely that she will be one of its brightest stars. Given that she is replacing the execrable Justice Souter, it is hard to see her being any worse. Still, there are liberal candidates, and liberal female candidates that President Obama could have nominated that would be stronger picks for the Court. It is likely that Judge Sotomayor will be confirmed, and probably on a bipartisan basis, but she is not the kind of distinguished jurist that will make a strong contribution to American jurisprudence. She will, however, be a reliably liberal vote on the Court, which seems to be President Obama’s primary criterion for picking a nominee.

Law professor Paul Campos takes a critical look at the Iowa Supreme Court’s recent decision upholding gay marriage. (The Court’s opinion is available here.) Campos finds that the legal reasoning behind the decision was lacking:

Stripped of its verbiage, the court’s opinion comes down to the following claims: First, it’s a bad thing for the state to treat people differently on the basis of sexual orientation, unless the state has a good enough reason. Second, the reasons the state gave for treating same sex-couples differently from opposite-sex couples in regard to marriage weren’t good enough.

That’s it. These conclusions might raise various questions in the mind of someone who hasn’t enjoyed the benefits of a legal education. Such as, what was the court’s basis for these claims? Is there anything specifically “legal” about these conclusions? And how did the judges figure this stuff out, especially given that it took more than a century before anyone noticed Iowa’s constitution contained this requirement?

The problem with the Iowa decision is that there isn’t a strong legal rationale for this decision. The Iowa Constitution cannot require the recognition of gay marriage because gay marriage was not acceptable at the time that the Iowa Constitution was written. In essence, the judges are reading their own personal feelings into the law. While the Iowa Constitution is more broadly worded than the federal Constitution, there is still no plausible argument that it was designed to allow for same-sex marriages. What the Iowa Supreme Court has done amounts to going back and changing the words of the Iowa Constitution to mean something that it never was intended to.

Even those who want gay marriage should be troubled by this. There are seven members of the Iowa Supreme Court. There are nearly 3 million Iowans. In a democratic state, 7 people should not be presumed to have the power to set sweeping social policy for the other 2,999,997 people.

Yet that is what happened. The Iowan people did not vote to have gay marriages recognized in their state. In fact, a clear majority of Iowans oppose gay marriage. Yet the voice of the people have been overruled by just 7 people. That is troubling, not only from a standpoint of separation of powers, but because it ultimately hurts the cause of gay marriage. The likely outcome of all of this will be another Prop 8, and even if the Iowa Constitution’s amendment process means that the vote won’t take place until 2012, having this decision essentially forced upon the people of Iowa will not make gay marriage more popular.

This is a clear case of judicial activism. Judges should follow the law, and avoid legislating from the bench. The legal case for gay marriage presented in this opinion is woefully thin—rather the judges decided to enforce a set of social norms on Iowans by their will rather than the legislative process. Even those who support gay marriage should be troubled by that. This is an example of the tyranny of the minority, where the few use judicial overreach to enforce their views in a way they otherwise could not. No matter what the outcome, that kind of circumvention of the democratic process is wrong. The very foundation of our government is based on fundamental values like separation of powers and the consent of the governed. The Iowa Supreme Court has made a sweeping change to Iowa’s social policies and laws without the consent of the people. If such a thing were to stand, it would mean that states are governed not by voters, but by the few.

Jim Geraghty notes a curious provision in the stimulus bill directed at the State of Illinois:

None of the funds provided by this Act may be made available to the State of Illinois, or any agency of the State, unless (1) the use of such funds by the State is approved in legislation enacted by the State after the date of the enactment of this Act, or (2) Rod R. Blagojevich no longer holds the office of Governor of the State of Illinois.The preceding sentence shall not apply to any funds provided directly to a unit of local government (1) by a Federal department or agency, or (2) by an established formula from the State.

It seems to me that this move is unconstitutional. The federal government may condition receipt of federal funds on doing certain things. For example, the Supreme Court upheld the federal government only allowing for highway funding to the states if they raised the drinking age to 21. South Dakota v. Dole, 483 U.S. 203 (1987). However, that case only allowed the government to do so for reasons related to the “general welfare”. Helvering v. Davis, 301 U. S. 619, 640–41 (1937).

The question is whether Illinois getting rid of Gov. Blagojevich is related to the “general welfare.” Say what you will of the corrupt and profane Illinois governor, he has not yet been convicted of any crime. This probably isn’t an illegal bill of attainder since it’s punishing Illinois rather than Blagojevich himself, but it’s still a gross violation of the principle of federalism. The “general welfare” isn’t a way for Congress to advance narrow issues or play political hardball. It would be blatantly unconstitutional for Congress to condition federal funding on a state electing a Republican governor or electing a female governor. So why should it be constitutional for the federal government to withhold funds from Illinois because they refuse to impeach Blagojevich on Congress’ timetable.

Even though the courts generally defer to Congress on what is defined as being in the national interest, this seems to be a rather clear case of Congress overstepping their constitutional limits.

This morning, the Supreme Court will hand down its decision in District of Columbia v. Heller, a case which will likely decide as a matter of law whether the Second Amendment creates an individual right to keep and bear arms.

To follow the Court’s session, SCOTUSblog’s live coverage will provide instant results and links to the opinions.

My prediction: a clear majority of the Justices will decide for the individual rights interpretation. A closer majority will decide the issue of what standard of review should be used—and there may not even be a majority on that. Either the standard of review will be narrowly decided to be strict scrutiny, or we’ll see a plurality opinion that allows for some reasonable regulation of firearms along the lines of the Solicitor General’s amicus brief.

Gun owners will be happy that the Court has recognized the Second Amendment for what it is—but if the standard of review is too lenient, then it may be less of a victory than some had hoped. My guess is that the Roberts Court is not about sweeping changes, and will temper the individual rights aspect of the decision with than a less than searching standard of review.

UPDATE: Affirmed 5-4. Individual right upheld. More this evening.

One of the professors at my law school teaches a course on “atrocious cases”—and today he will have something new to add to his syllabus. The Supreme Court handed down a ruling in the case of Boumediene v. Bush that represents one of the most blatant examples of judicial activism of our time. The Supreme Court, or at least five of its Justices, have decided that an alien outside the territory of the United States has the right to the writ of habeas corpus.

Chief Justice Roberts, in his dissent (joined by Justices Alito, Thomas, and Scalia) explains why this decision is both overly broad but also unsatisfying to all:

So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D. C. Circuit—where they could have started had they invoked the DTA procedure. Not Congress, whose attempt to “determine-through democratic means—how best” to balance the security of the American people with the detainees’ liberty interests, see Hamdan v. Rumsfeld, 548 U. S. 557, 636 (2006) (BREYER, J., concurring), has been unceremoniously brushed aside. Not the Great Writ, whose majesty is hardly enhanced by its extension to a jurisdictionally quirky outpost, with no tangible benefit to anyone. Not the rule of law, unless by that is meant the rule of lawyers, who will now arguably have a greater role than military and intelligence officials in shaping policy for alien enemy combatants. And certainly not the American people, who today lose a bit more control over the conduct of this Nation’s foreign policy to unelected, politically unaccountable judges.

Justice Scalia’s dissent was blistering—even by his standards:

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rumsfeld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo petitioners’ claims, four Members of today’s five-Justice majority joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary. “Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal
with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).

Turns out they were just kidding.

Indeed they apparently were. Like Lucy pulling the football from Charlie Brown, the Supreme Court has told both the elected branches of government that they call the shots. If there were some strong constitutional logic behind this decision it would be one thing. But the majority opinion even admits that the law is at best murky on the issue of whether a foreigner has ever been granted habeas rights when they are outside the sovereign territory of the United States (and even that contention flies in the face of the weight of authority that decisively holds that they have no access to the writ). Undeterred, the Court chooses to dramatically rewrite settled precedent nonetheless. If prior cases had eviscerated and overruled the key Supreme Court precedent in Johnson v. Eisentrager, 339 U.S. 763 (1950), this decision has rendered it a nullity.

The goal of our courts is not to make the law, but to follow the Constitution. This decision is not grounded in the jurisprudence of the Constitution, but of the whims of five. Justice Scalia puts it bluntly, but accurately:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today.

I certainly hope that it will, but if certain members of the judiciary have their way it will be as a tyranny of the few. Our country is, and should be, a nation of laws, not men. It is sad that we are elevating the whims of five Justices over the will of those who are responsible to the people.

Heather McDonald takes a probing look at whether America’s criminal justice system truly is racially biased. Perhaps unsurprisingly, the objective evidence does not match the conventional narrative:

Backing up this bias claim has been the holy grail of criminology for decades—and the prize remains as elusive as ever. In 1997, criminologists Robert Sampson and Janet Lauritsen reviewed the massive literature on charging and sentencing. They concluded that “large racial differences in criminal offending,” not racism, explained why more blacks were in prison proportionately than whites and for longer terms. A 1987 analysis of Georgia felony convictions, for example, found that blacks frequently received disproportionately lenient punishment. A 1990 study of 11,000 California cases found that slight racial disparities in sentence length resulted from blacks’ prior records and other legally relevant variables. A 1994 Justice Department survey of felony cases from the country’s 75 largest urban areas discovered that blacks actually had a lower chance of prosecution following a felony than whites did and that they were less likely to be found guilty at trial. Following conviction, blacks were more likely to receive prison sentences, however—an outcome that reflected the gravity of their offenses as well as their criminal records.

Another criminologist—easily as liberal as Sampson—reached the same conclusion in 1995: “Racial differences in patterns of offending, not racial bias by police and other officials, are the principal reason that such greater proportions of blacks than whites are arrested, prosecuted, convicted and imprisoned,” Michael Tonry wrote in Malign Neglect. (Tonry did go on to impute malign racial motives to drug enforcement, however.)

There’s no doubt that the incarceration rate in this country is shockingly and troublingly high. However the solution to this problem is not to pretend that it is the fault of the justice system, but to recognize that it comes from a culture of lawlessness. At some point, the crisis becomes self-perpetuating. A culture in which criminal activity is common is likely to be a culture that produces more crime. People live to the norms they see, and when violence, drug use, and crime become endemic, there is more likely to be more crime, violence, and drugs.

The problem with the idea of less vigorous law enforcement is that the ones who are hurt by increases in crime tend also to be disproportionately members of minority groups. Gang-bangers and drug dealers victimize their own communities, not the suburbs. The effects of out-of-control inner-city crime are not helped by efforts to concentrate resources in places where crime is not such an immediate and pressing problem.

What then is the solution? The neglect of America’s inner cities is a travesty made worse by a false sense of noblesse oblige on the part of well-intentioned outsiders. The only lasting solutions will have to come from within. The problem is not who is getting caught, but who are committing the crimes. Trying to solve the wrong set of problems helps no one.

Kurt Denke is the owner of a company that makes connection cables for audio/visual equipment. Monster Cable is a company that sells ridiculously-priced connection cables for audio/visual equipment. Monster Cable decided to send a cease-and-desist letter to Mr. Denke’s company.

Monster Cable didn’t realize that Mr. Denke was a lawyer.

This is the response they got to their claim of patent infringement.

Let’s just say that Monster Cable is probably wishing that they’d never sent that letter:

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs’ practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am “uncompromising” in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court’s attention upon the merits of your claims–or, to speak more precisely, the absence of merit from your claims–from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

Corporate counsel should take note: if you’re going to send a cease-and-desist letter to someone, it’s a good idea to first make sure that you actually have a good-faith case, and second, it’s probably a good idea to make sure that the person you’re threatening isn’t a better lawyer than you are.

(Via Slashdot.)