NINOMANIA

 Subscribe in a reader

:: Thursday, May 28, 2009 ::

Sotomayor v. Darlingsweety. Advantage: Sotomayor.

While much of the right gears up against Judge Sotomayor, I myself (am I a little corner of "the right"? I blog: you decide) keep finding reasons to find her a remarkably friendly nominee, considering the President whose constitutional job it is to choose the Justice this time around.

In what looks like a free-speech ain't-she-mean story, we learn that Judge S. "ruled against" a high school student who called school officials "d_____ bags" on her blog because they had interfered with some piece of fun or other that she was arranging. Said officials then disqualified her from running for school government. So then her mom, of course, sued. After all, what's the cost of litigation compared to that student government line on the college app? Even if they lose, it's a heckuva story for the app essay.

Well, to begin with. First, on the merits, this case is squarely within Bethel v. Fraser, with strong backup as well from Hazelwood v. Kuhlmeier. A Circuit Judge is bound by Supreme Court precedent. The school district wins. The 2nd Circuit panel ruling was unanimous. E-Z.

Second, the holding was not on the merits, but on a preliminary injunction, to which a plaintiff is entitled only if she has a strong chance of prevailing on the merits. Since Miss Avery Doninger didn't have a sheep's chance in a raptor's cage of prevailing on the merits, her request for a prelimary injunction bordered on the frivolous.

But there's more. In days of old when knights were bold, parents who didn't home-school realized that delegating the education of one's children to others -- especially to the government -- is kind of an all-or-nothing deal, and that those entrusted with this difficult task can't really carry it out if they're constantly being micro-managed by parents whose children, by definition, can do no wrong. As a result, parents realized that their children can, in fact, do wrong, and as a result, gave school officials some slack, and their kids some discipline.

Not any more. Now any conflict between Hunnybun and Authority is WAR, so Miss Doninger's mom sued. And got a perfectly correct result from our friend Judge Sotomayor -- well actually from Judge Livingston, but she was joined on the unanimous panel by Judges Sotomayor and Preska.

I don't look for these examples; I just find 'em and comment on 'em. The esteemed Wendy Long may have been right when she called Sotomayor "a liberal judicial activist of the first order." As soon as Ms. Long finds a case by Sotomayor (as distinct from a snippet of a speech or two) that actually demonstrates this, I'm sure she'll pass it along to the rest of "the right."

:: David M. Wagner 2:19 PM [+] ::
...

:: Wednesday, May 27, 2009 ::

A remarkable piece of New York Times-NARAL teamwork

"Abortions rights backers," the moribund paper of record would have us believe, are experiencing "unease" about Judge Sotomayor. She might even, they allegedly fear, be that fifth vote to strike down Roe.

OK, what is this really about? That becomes clear in the third graf: “Discussion about Roe v. Wade will — and must — be part of this nomination process,” a NARAL spokesperson is quoted as saying. You see? This is about making sure that an explicit commitment about abortion becomes a canonical part of the confirmation hearing process.

Justices Roberts and Alito avoided discussing abortion and/or Roe, and they relied on the precedent of Justice Ginsburg, who -- rightly, of course -- also declined to discuss it. NARAL is trying to reverse the Ginsburg precedent.

Meanwhile, have a look at the Sotomayor decisions that, if we are to trust the NYT (maybe I should stop right there), are considered alarming by "abortion rights advocates":

In a 2004 case, she largely sided with some anti-abortion protesters who wanted to sue some police officers for allegedly violating their constitutional rights by using excessive force to break up demonstrations at an abortion clinic. Judge Sotomayor said the protesters deserved a day in court.

So, to "aborton rights backers," people who allege police brutality don't even deserve a day in court if they are "anti-abortion protestors"?

Judge Sotomayor has also ruled on several immigration cases involving people fighting deportation orders to China on the grounds that its population-control policy of forcible abortions and birth control constituted persecution.

So "abortion rights advocates" are down with forcibly deporting women to China where they face forced abortion or sterilization, or punishment for resisting these?

In a 2007 case, she strongly criticized colleagues on the court who said that only women, and not their husbands, could seek asylum based on China’s abortion policy. “The termination of a wanted pregnancy under a coercive population control program can only be devastating to any couple, akin, no doubt, to the killing of a child,” she wrote, also taking note of “the unique biological nature of pregnancy and special reverence every civilization has accorded to child-rearing and parenthood in marriage.”

So the abortion-rights agenda means fighting that biological nature and that special reverence, and forcing dads to stay back in China even when the moms are admitted here as refugees?

Hey, I read it in The New York Times...!

:: David M. Wagner 10:28 PM [+] ::
...

:: Tuesday, May 26, 2009 ::

Bill Donohue of the Catholic League for Civil and Religious Rights makes a point: assuming that Judge Sotomayor, as a New York Puerto Rican, has a background (at least) as a Catholic, then her confirmation would give use a 2/3 RC Court! There was a certain amount of caterwauling about this factor when it was Roberts and Alito, but nothing so far this time, while the Court's supposed "Catholic majority" grows.

To Donohue, no surprise: if Judge S. is a Catholic, then she's the "right kind" of Catholic, meaning, the left kind of Catholic.

Shifting gears, Donohue then makes another point:

On a personal note, I must say that having spent four years in the 1970s teaching in a Catholic elementary school in Spanish Harlem, I loved working with the Puerto Rican people. Indeed, I feel some of the pride that Puerto Ricans rightly feel today. Good for them—this is their special day.

Without endorsing ethnicity as a way of picking a Justice, I can get down with that. I'd rather it were Emilio Garza or Miguel Estrada, but hey you know, it's good to be in America.

:: David M. Wagner 3:49 PM [+] ::
...

California Prop 8 decision: While waiting for the text, a little background:

The legal issue on Prop 8 was which side of a unique California line it falls on.

It seems that when the California Constitution was written, its drafters, like constitution drafters in many other western states, wanted to include a plebiscitary amendment process. At the same time, they wanted to make it just a tad difficult for the people to use the amendment process to transform the mode of government utterly.

So if, e.g., the people were seized with a sudden desire to turn California into a monarchy, that would be a "revision," not an "amendment," and would require more elaborate procedures than "merely" a vote of the people.

So -- you were expecting this by now -- the argument made by Prop 8 opponents to the California Supreme Court was that once that Court itself had declared same sex marriage to be required by the equality principle of the California Constitution, as it did in 2008, undoing that decision is more like changing California from a republic to a monarchy than like, say, changing the Governor's term of office or something of that nature.

It appears the California court did not agree.

The Court also upheld the 18,000 same-sex marriages contracted between In re Marriage Cases and the enactment of Proposition 8. Observations:

1. Faced with a chance to split a difference, appellate courts will generally take it: compare Grutter/Gratz, Van Orden/McCreary.

2. If the meaning of Prop 8 is that the California Const never recognized same sex marriage, then it makes no sense to recognize the interim ssms; however...

3. If its meaning is that the CA Const recognized ssms for a few months but now no longer does, then recognizing the interim ssms does make sense.

4. In any case, people have a reasonable interest in stability in their legal status, even if their legal status is one that conflicts with natural law, good public policy, and popular will.

Net net: I don't see the court's holding on the interim ssms as a biggie. Maybe someone will prove me wrong.

:: David M. Wagner 1:21 PM [+] ::
...

Sotomay-even-more

David Lat tweats that Judge Sotomayor should "thank" Jeff Rosen. Could he be referring to this column, for which my own hat-tip must go to Jordan Sekulow? Rosen's May 4 anti-Sotomayor piece concludes (nearly):

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

Sotomay-oh-may.

I think the drift of the argument here -- I mean, the left's anti-Sotomoyor argument: we'll see in the next few days whether the meme develops, or whether they keep it quiet -- is that given the chance to appoint a true antidote to Scalia, and with the Best. Senate. Ever., Obama has kind-a sort-a blown it.

Can anyone say Soutermayor?

:: David M. Wagner 10:57 AM [+] ::
...

Sotomayor

So, with rubber-stamp strength in the Senate, he goes for a nominee with high enough ethnic oomph and low enough radical negatives to have gotten through even if the opposition were in control.

Hmm. Maybe he knows/thinks he'll get another slot next year (off-year-election politics be darned). Maybe he thinks there's no way 2010 will produce a marginally more Republican Senate, or that 2012 might bring even more extensive changes.

Hmm. Hmm.

David Lat, you were one step too smart for this President!

:: David M. Wagner 10:31 AM [+] ::
...

:: Wednesday, May 20, 2009 ::

New bloglinks: Redeeming Law, by colleague Mike Schutt, and (related) Cross & Gavel Resources Blog.

:: David M. Wagner 2:18 PM [+] ::
...

:: Monday, May 18, 2009 ::

Day after Notre Dame speech, Obama interviews prominent pro-abortion Catholic, MI Gov. Jennifer Granholm, at White House. For SCOTUS slot, some think.

Fwiw, I think David Lat makes a good predictive case for Judge Diana Wood. Whether she would be a "WW III" pick is another question.

In any case, the role of Senate Republicans should be clear. It will not be to stop the nominee (outside of some extreme nomination, or a nominee with important non-philosophical barnacles, just as, um, unpaid taxes). It will be to raise the visibility of the judicial role as a national issue. The confirmation process will be a teaching moment. Of course, you can't teach if you don't know, but someone in the Senate Republican Conference must know....

:: David M. Wagner 6:30 PM [+] ::
...

:: Friday, May 01, 2009 ::

Did I just refer to Kathleen "Sibelius" in the post below? Ach, musical me. I meant "Sebelius," of course.

:: David M. Wagner 4:37 PM [+] ::
...

Fox is out with a substantial and credible-looking list of possible Souter replacements.

First, the obvious: Obama is not going to appoint someone who will make me happy, and one should avoid, for the sake of not looking like idiots, the kind of press-release bilge that the Nan Arons of the world routinely put out when a Republican president has a vacancy to fill, demanding a liberal nominee under color of "fairness," "constitutional values," or even -- don't laugh -- "balance on the Court," as if they wouldn't love nine Brennans if they could get them.

That said, some names on the Fox list are more reasonable, and others more rebarbative, than others. Confining myself to this list, and postponing the details for later in the interest of making a timely statement (cf. Kennedy, Edward, 4th of July, 1987), here are the ones from the list that, it seems to me, would ignite World War III among Republican Senators and conservative groups. (I assume some of these are trial balloons. Consider me a needle.)

Harold Koh

Janet Napolitano

Kathleen Sullivan

Rosemary Barkett

In a separate category are two state governors on the list: Deval Patrick of Massachusetts, and Jennifer Granholm of Michigan. Some will say state governors per se should not considered; I disagree. But there may be particular reasons why these candidates are risky choices. Patrick's popularity in-state has tanked, I hear, and for reasons. Granholm would mean yet another go-round of the "pro-abortion Catholic" controversy, which Obama may not mind, or may even desire; otoh he may be tired of it, coming after Biden, Notre Dame, and Sibelius.

:: David M. Wagner 12:08 PM [+] ::
...