The BLT: The Blog of Legal Times

Alito Praises Fidelity to the Law, But Cameras? Maybe Not

Justice Samuel Alito Jr. spoke to the Federalist Society last night, but photos of him doing so are hard to come by. That's because photographers other than the Federalist Society's own were barred from the event.

Keith Appell, a spokesman for the Federalist Society, said cameras were prohibited by Alito's security detail. It was an interesting twist on a night in which Federalist Society co-founder David McIntosh announced to the crowd that James O'Keefe and Hannah Giles, the independent filmmakers who posed as a pimp and a prostitute and videoed ACORN employees giving advice on how to skirt taxes, were in attendance. "You all saw those great videos that brought down the ACORN organization, right? Well, those kids are here," McIntosh said.

Kathy Arberg, the court spokeswoman, said "The justice's policy was that the event was open to still cameras and pencil press," and that the Federalist Society was informed of that policy before the event.

The Nov. 12 barring of cameras came just days after The New York Times reported that Justice Anthony Kennedy's office had insisted on pre-approving a Manhattan high school newspaper’s story about an Oct. 28 talk he gave to a student assembly.

In last night’s speech, Alito spoke of the importance of judges interpreting “what the law is and not what it should be.” He said, “That should be the basic starting point for anyone discussing the role of federal courts. But this basic starting point has been and always will be under attack, sometimes subtly and sometimes overtly.”

Alito stood up for his newest colleague, Justice Sonia Sotomayor, who Alito said had been criticized during her confirmation hearings for repeatedly saying that her tenure on the high court would be characterized by fidelity to the law.

Referring to her opening statement, Alito said, “There was not a word in that statement that was controversial, but that’s not how it was received by her progressive audience.” He cited as an example a post on the Federalist Society’s Web site by Georgetown law professor Louis Michael Seidman, in which Seidman wrote, “I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified.”

“And those were the words of one of her supporters,” Alito said. “I had a lot of opponents, but I never had any supporters like that.”

Alito also referred to the recent decision Ricci v. DeStefano, in which the Court held that the city of New Haven, Conn., violated Title VII by discarding the results of a firefighter promotion test that would have led to no minority promotions. The case became one of the primary themes of Sotomayor’s confirmation hearings because as a judge on the U.S. Court of Appeals for the 2d Circuit, she voted in the city’s favor.

Alito said that, although he disagreed with Sotomayor’s 2d Circuit vote and Justice Ruth Bader Ginsburg’s Supreme  Court dissent, they and other colleagues with whom he has disagreed during his time as a judge, were not “fools or acting in bad faith.” He applauded Ginsburg for not basing her decision on “sympathy” for the plaintiffs.

“Sympathy is not what Ricci, Vargas, or any of the other firefighters have a right to demand,” Alito said. “What they have a right to demand is even enforcement of the law.”

Panel Previews Upcoming Supreme Court Term

A panel of some of Washington’s top legal brass and constitutional law experts gathered at the National Press Club ballroom this afternoon to gaze into their crystal balls and preview some of the top cases coming before the Supreme Court this term, which begins Oct. 5.

Akin Gump Strauss Hauer & Feld partner and frequent Supreme Court litigator Thomas Goldstein moderated the panel, convened by the liberal American Constitution Society for Law and Policy.

Here’s a rundown of a few cases that the experts said could be a big deal this term:

Citizens United v. Federal Elections Commission: Technically an extension of last term and heard in a special session on Sept. 9, this case centers on the whether corporate expenditures in political campaigns can be limited.

Doug Kendall, founder and president of the Constitutional Accountability Center, debated the case with Jones Day partner Michael Carvin. Though both agreed the case is expected to fall on the side of corporations, they disagreed on whether or not that would be good.

Kendall said the likely ruling would be “unleashing corporate campaign expenditures” and “violating the text and principles” of the Constitution.

Carvin, on the other hand, said corporations should and do have the same rights as individuals.

“I don’t think eliminating their core speech rights could be reconciled with any text in the Constitution,” he said.

United States v. Stevens: Paul Smith, a partner at Jenner & Block, said this First Amendment case should be watched closely.

“The U.S. is asking the Supreme Court, for the first time in a quarter century, to make an exception to the free speech clause for (depictions of) animal cruelty,” he said, adding that it’s not clear where the court will stand.

Salazar v. Buono: This case asks whether a war memorial in California—a giant cross—violates the establishment clause. Smith said the decision is up in the air here too.

“I wouldn’t be surprised if we get a very aggressive stand on an establishment clause ruling,” he said.

Black v. United States: This test of the federal law that criminalizes the denial of honest business to the public or an employer could be decided by Justice Antonin Scalia, said Pamela Harris, executive director of the Georgetown University Law Center Supreme Court Institute.

“I think chances are pretty good, with Scalia leading the charge, that the court is going to do something to limit the scope of the statute,” she said. “The question is:  How much?”

American Needle v. NFL: The case questions whether the NFL is a single entity exempt from antitrust law or a group of 32 separate companies—the teams. Morrison & Foerster partner Deanne Maynard said if the Supreme Court rules in favor of the NFL, this case could have wide-ranging implications beyond just sports organizations.

“I think it could affect any kind of joint business venture,” she said. “It could mean that in doing these (joint) activities, the companies are a single entity.”

Justice John Paul Stevens’ potential retirement drew some speculation from the panel, especially Maynard, who said that a woman like Solicitor General Elena Kagan could replace him.

“It’s a very intriguing thought, to me at least, that there would be three women” on the Supreme Court bench, she said.

Of course, the panel said they were eager to see how new Justice Sonia Sotomayor would change the landscape of the court, but Kendall said the real story of this term could be that it becomes an indicator of where Chief Justice John Roberts Jr. will take the court.

“I do think this term is going to be an enormous test for Chief Justice Roberts and the conservatives on the court,” he said. “Citizens United is probably the biggest we’ve seen so far if it goes the way we expect it to.”

Justices, Circuit Judges to Attend Sotomayor Event

This morning's White House reception for Justice Sonia Sotomayor is expected to bring out some legal elite -- mostly from Sotomayor's native New York, but also from Washington and around the country.

Justices John Paul Stevens and Ruth Bader Ginsburg, considered part of the Supreme Court’s liberal wing, are on the guest list as the only other justices expected to attend. Five judges from the U.S. Court of Appeals for the 2nd Circuit, Sotomayor’s prior court, are on the list, as is Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit, himself once a rumored candidate for the Supreme Court.

Other expected attendees are from the civil rights community, academia, and politics.

Sotomayor Confirmed

The Senate has confirmed Judge Sonia Sotomayor to the Supreme Court in a historic vote that will make her the nation’s first Hispanic justice and the third woman appointed to the Court.

Sotomayor, born in New York City to parents who moved there from Puerto Rico, won over nine Republican senators to go with the 59 members of the Democratic caucus who were present. The final margin of 68-31 was larger than the 58-42 vote three years ago for Justice Samuel Alito Jr., but it was still a smaller margin than other justices have received.

The vote gives President Barack Obama’s administration a significant, early win in the judicial confirmation wars. Smaller battles are just over the horizon, as the Senate considers whether to confirm Obama’s first nominees for federal circuit courts.

Sotomayor’s confirmation was never in doubt, even as many Republicans cast her as a judge who would allow personal biases to influence her decisions. Democrats characterized her as a moderate, pointing to her 17-year record as a judge in the Southern District of New York and on U.S. Court of Appeals for the 2nd Circuit.

Sotomayor replaces retired Justice David Souter, who spent 19 years on the Court but submitted his resignation this spring to return to New Hampshire.

No plans for Sotomayor’s swearing-in have been announced, but she is likely to take her seat within days if not hours. She will participate in her first oral argument next month, when the Court rehears the campaign finance case Citizens United v. FEC.

The nine Republicans who supported confirmation included four who are retiring from the Senate, as well as others who have relatively moderate voting records. Their support, as well as the support of conservative Democrats, came despite an announcement by the National Rifle Association that a vote for confirmation would lower the ratings the NRA gives them.

Debate lasted parts of three days, as senators reiterated arguments they have been making for months. In the end, they returned to analyzing the statements of a former colleague, President Barack Obama, endorsing the role of empathy in a judge’s decision-making.

“The power to rule on empathy is the power to rule on prejudice. And the power to deny the rights of some is the power to deny the rights of any, or all,” said Sen. Jeff Sessions (R-Ala.), the top Republican on the Senate Judiciary Committee. “A judge embraces empathy at the expense of objectivity — and equality and fairness.”

Judiciary Committee Chairman Patrick Leahy (D-Vt.) accused Republicans of misconstruing Obama’s words. “He has never said he would substitute empathy for the rule of law. That’s a false choice. And opposition to this nomination has been based on a false premise,” Leahy said. “Judge Sotomayor reiterated, time and time again during her confirmation hearing, her fidelity to the law.”

The only senator who did not vote was cancer-stricken Sen. Ted Kennedy (D-Mass.), a former chairman of the Judiciary Committee and a central figure in past confirmation fights.

Sen. Al Franken (D-Minn.) announced the final tally from the presiding officer's chair, which freshmen senators typically occupy.

Constitutional Expert Advised Democrats on Sotomayor

Democrats on the Senate Judiciary Committee turned to a trusted ally from academia to advise them on the nomination of Sonia Sotomayor to the Supreme Court.

Michael Gerhardt, a professor of constitutional law at the University of North Carolina at Chapel Hill, worked behind the scenes leading up to the Senate debate this week on whether to confirm Sotomayor. He’s a frequent commentator on Supreme Court nominations and confirmations, as the author of numerous books and law review articles and as a consultant to the Clinton White House during Justice Stephen Breyer’s nomination.

Gerhardt assisted with research on the staff of Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, a Leahy spokeswoman said. He declined to comment on the experience, writing in an e-mail that “my assignment precludes any public commentary.”

His involvement, which appears to have gone unreported so far, became clear Tuesday when he was granted privileges to appear in the Senate chamber during the Sotomayor debate. The granting of “floor privileges” is standard procedure for non-senators.

Gerhardt also had a role in the last Supreme Court nomination, when he testified (pdf) before the Judiciary Committee at the confirmation hearing for Justice Samuel Alito Jr. At the time, he told senators — including Democrats contemplating voting against Alito’s confirmation — that they should feel free to base their votes on any factors they consider pertinent, including judicial philosophy.

This summer, Gerhardt was not the only academic advising a member of the Judiciary Committee. As previously reported, Sen. John Cornyn (R-Texas) brought on Orin Kerr, a specialist in criminal law at George Washington University.

Sotomayor Debate Begins After Focus on Agriculture

The full Senate has begun its official debate on whether to confirm Judge Sonia Sotomayor to the Supreme Court, after spending much of the last two days on a bill about agricultural spending.

The debate is scheduled to continue through most of the week. Because senators want to leave Washington to begin their August recess by this weekend, the debate will likely last less than the four days Republicans had hoped to spend on it. A vote to confirm Sotomayor is likely near the end of the week.

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, began the debate with harsh criticism of the Supreme Court’s five-member conservative majority. He listed several recent cases in which the justices struck down the actions of Congress or other elected bodies, including cases related to employment protections and school desegregation. Sotomayor would be a counterweight to that majority’s “judicial activism,” he said.

“No one has pointed to decisions [by Sotomayor] that evidence bias. No one has shown any pattern of her inserting her own personal preferences into her judicial decisions,” Leahy said in his prepared remarks. “No one can, because it does not exist. That is not who she is, nor the type of judge she has been.”

Sen. Jeff Sessions (R-Ala.), the Judiciary Committee’s top Republican, said Sotomayor has failed to be objective in cases related to property rights and gun rights.

“Judge Sotomayor’s expressed judicial philosophy rejects the ideal of impartial and objective justice,” Sessions said in his prepared remarks. “Instead, her philosophy embraces the impact gender, background, personal experience, sympathies, and prejudices — these are her words — have on judging.”

Sotomayor Vote Likely Late Next Week

A confirmation vote for Supreme Court nominee Sonia Sotomayor will be one of the last things the Senate does next week before it adjourns for its August recess, Majority Leader Harry Reid (D-Nev.) said today.

Reid spoke at a news conference surrounded by civil rights leaders celebrating the imending confirmation. He said he's still trying to work out the details of the floor debate with Minority Leader Mitch McConnell (R-Ky.), but he insisted Republicans will have plenty of time to debate the meaning of speeches Sotomayor has given and her involvement in the reverse-discrimination case Ricci v. DeStefano.

"I'm going to make sure that senators can talk about that speech another 30 or 40 times, or about that case another 50 or 60 times," Reid said. The Senate, he said, is "going to work long hours" over the next week-plus as it heads toward an expected Aug. 7 adjournment.

Several Republicans have said they will not support postponing a confirmation vote until September.

Senate Judiciary Committee Backs Sotomayor

Supreme Court nominee Sonia Sotomayor has picked up the endorsement of the Senate Judiciary Committee, which voted largely along party lines today in favor of confirming her to the Court.

The 13-6 vote came two months and two days after President Barack Obama named Sotomayor as his choice to succeed Justice David Souter, and it sets up a vote next week in the full Senate, which is expected to confirm her after as many as four days of debate.

All Democrats on the committee voted in favor of her nomination. All Republicans but one — Sen. Lindsey Graham (S.C.) — voted against it, as expected.

In a two-hour committee debate, senators revisited arguments they made for and against Sotomayor's nomination when they held a hearing this month. Most Republicans accused her of allowing her personal views, as set out in a series of speeches, to influence her rulings. Democrats described a record of restraint from her 17 years as a district court judge and as a judge on the U.S. Court of Appeals for the 2nd Circuit.

But senators also used the vote to make points about the confirmation process, and to set out standards for battles to come.

"We've set expectations, I believe, for future nominations," said Sen. John Cornyn (R-Texas), taking pride that Sotomayor backed away from Obama's statement as a senator that a judge must look to her heart in deciding difficult cases.

Sen. Sheldon Whitehouse (D-R.I.) said he wasn't ready to concede that all nominees need to echo conservatives' rhetoric. "I do not wish judges without empathy — who will ignore the long and proud history of the courtroom as the last stand for many beleaguered Americans," he said.

In explaining his vote, Graham expressed frustration with what he called the politicization of the judiciary. Legislators, he said, should be more respectful of nominees' backgrounds and views.

"We ask for the scrutiny that we have as politicians, with the ads that we run against each other and the things we say about each other. We have a chance to respond. But with judges, it's different," Graham said. "The law should be a quiet place."

Senators Want Changes in Confirmation Hearings

Two Democratic senators said today they're not happy with how the Senate Judiciary Committee conducts confirmation hearings for Supreme Court nominees.

As the committee prepared to vote on Sonia Sotomayor's nomination, Sen. Herb Kohl (D-Wis.) bemoaned what he called a "familiar pattern" in confirmation hearings. Nominees, he said, take the "path of least resistance" when they refuse to answer almost all of senators' questions about the substance of law.

"We cannot ask nominees to disclose how they would rule on cases that might come before them, but it is reasonable for us to ask their opinions on past Supreme Court decisions," said Kohl, the second most-senior Democrat on the committee.

Kohl, who supports Sotomayor's nomination, said his comments were not directed only at her, but at all nominees in recent years and at the process itself.

Sen. Russ Feingold (D-Wis.) said the process fails to educate either the public or the Senate about a nominee. It makes no sense, he said, that the only person in the United States who cannot express an opinion on recent Supreme Court rulings "is the person from whom the public most needs to hear it."

"These hearings have become little more than theater," Feingold said, "where senators try to ask clever questions and nominees try to come up with clever answers."

Neither Feingold nor Kohl proposed specific changes.

As The National Law Journal reported this month, the battle over what questions can be asked and answered at confirmation hearings has continued for almost a century. Proposed changes — such as having a senior staff person question the nominee — have gained little momentum.

UPDATE (11:21 a.m.): Sen. Tom Coburn (R-Okla) agrees. "We need to let judges let us know what they really think," he said.

Senators on Message as Sotomayor Debate Starts

The nomination of Sonia Sotomayor to the Supreme Court began two months ago with a debate over the impact of judges' personal biases. It's ending the same way.

Senators focused on the issue this morning as they began discussing Sotomayor's nomination in the Senate Judiciary Committee, which held a hearing two weeks ago on the nomination. The committee is expected to endorse Sotomayor later this morning, sending the nomination to the full Senate for a vote likely next week.

Chairman Patrick Leahy (D-Vt.) called Sotomayor a "restrained, fair and impartial judge" — echoing comments he has made since May.

"Ironically, the few decisions for which she's been criticized are cases in which she did not — did not — reach out to change the law or defy judicial precedent; in other words, cases in which she refused to make law from the bench," Leahy said in his opening statement. "In her 17 years on the bench, there is not one example, let alone a pattern, of her ruling based on bias or prejudice or sympathy."

Sen. Jeff Sessions (R-Ala.), the committee's top Republican, said he wasn't convinced. He cited Sotomayor's speeches on the question of judges' personal biases, and he said her testimony this month "did not have the clarity and the compelling nature" to overcome her prior words.

"I don't think anyone should be on any court in America who is not deeply committed to the ideal of American justice — and that is that they can set aside their personal biases and prejudices," said Sessions, who announced his opposition Monday.

Added Sen. Chuck Grassley (R-Iowa): "I'm not sure that Judge Sotomayor is willing to wear the judicial blindfold."