It doesn’t take much to derail, or at least significantly distract, a U.S. Supreme Court nomination.
Remember Samuel Alito Jr.’s long-ago membership in a group that wanted Princeton University to remain all-male? It kicked up a fuss, as did John Roberts Jr.’s ruling upholding the arrest of a 12-year-old girl for eating a single french fry in a Washington subway station. Critics called it heartless.
Even David Souter, the justice whose replacement will soon be named, had his trial by innuendo. Soon after Souter was nominated in 1990, scattered rumors appeared in print that the lifelong bachelor was gay. Souter was so outraged that he tried to phone President George H.W. Bush and have his name withdrawn. His friend and sponsor Warren Rudman had to physically restrain and settle Souter down with a scotch before he agreed to stay on. Women he had dated came forward, and the rumor receded.
What will be the Achilles’ heel, the french fry case, for the next nominee? That question might normally wait for the nominee to actually be named. But in the accelerated, intense glare of bloggers and bloviators, President Barack Obama’s presumed short-listers have already been picked over and subjected to extended criticism. Videos of different candidates, some damaging and others sleep-inducing, have blossomed on YouTube.
Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) has already decried the “smoke and mirrors campaign” against possible nominees. By the time someone is named — perhaps as soon as this week — the ensuing battle may seem anti-climactic.
NUNCHAKUS AND FIREMEN
Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2d Circuit, viewed by some as the front-runner, may already feel as if she has been through the confirmation wars, given all the attention she has already gotten. Late last week Sotomayor’s health — she has diabetes — was also raised as a possible issue. “She’s a very good target,” said Curt Levey of the conservative Committee for Justice, a veteran of confirmation battles.
The latest criticism is for Maloney v. Cuomo , a per curiam January decision she joined that upheld a New York law barring possession of nunchakus. A nunchaku is a weapon consisting of two sticks joined by a cord, used to choke or hit victims. A man arrested for possessing one said the law violated his Second Amendment right to bear arms. But the curiam opinion said the Second Amendment does not apply to states, an issue that is pending in other cases. If she is nominated, said Levey, gun rights advocates will be energized against her.
Another per curiam opinion, this one in a Connecticut case, has also gotten Sotomayor into trouble with conservative commentators. She was on the panel that issued a brief, unpublished opinion that approved the city of New Haven’s decision to withdraw an exam for firefighters because no African-Americans who took the test made the cut for promotion. The ruling was appealed to the Supreme Court by the white firefighters (and one Hispanic) who were not promoted in Ricci v. DeStefano and is now pending.
“The firefighters whose claims she tried to bury would make powerful witnesses against her,” said Ed Whelan, a former clerk to Justice Antonin Scalia who has picked apart the rulings of several potential nominees on the conservative National Review Online blog.
Karen Torre, who argued for the firefighters before the appeals panel, said Sotomayor dominated the questioning. “It seemed to me and to the clients, all of whom were present…that Judge Sotomayor held strong favorable views of New Haven’s decision.”
Sotomayor has also been attacked for a video, widely watched on YouTube, in which she said the “court of appeals is where policy is made.” Shown the clip during a Fox News interview, Sen. Orrin Hatch (R-Utah) pronounced, “That’s a problem.”
Seen in context, the quote may seem less so. She made the remark at Duke University in 2005, offering advice for law students seeking jobs with public interest or civil rights groups. Such groups, she said, would be interested in students with appeals court experience — presumably as law clerks — because of the courts’ policy role. Unlike fact-bound district court cases, Sotomayor said appeals courts’ disputes require appeals judges to consider “the ramifications of the ruling on the next step of the development of the law.” In other words, policy.
Sotomayor has ardent supporters, as well. Robin Kar, a former clerk who teaches at Loyola Law School, Los Angeles, wrote an impassioned defense of her on ProfsBlawg on May 5, asserting that Sotomayor “would be the ideal justice to help move the Court into a saner, more thoughtful, and more unified era.”
Solicitor General Elena Kagan, another prominent candidate, is a former dean of Harvard Law School who has won support from conservatives and liberals. But she has drawn criticism for her strong opposition five years ago to the so-called Solomon Amendment. That statute barred universities that receive federal funds from denying military recruiters the same access to students as other employers.
In Rumsfeld v. FAIR , a 2005 challenge to the law, Kagan — acting as professor, not dean — joined other Harvard professors in a brief arguing that Harvard was in fact treating military recruiters the same as other employers. It was doing so, the brief said, by denying access to any employer, not just the military, that refuses to pledge not to discriminate against student prospects on the basis of sexual orientation.
The Court unanimously dismissed the argument out of hand, asserting that the professors’ interpretation would render the law “a largely meaningless exercise.”
Harvard Law School professor Laurence Tribe, who also signed the brief, said, “We all knew that the Solomon Amendment argument was an uphill one, but many lawyers and scholars, including quite a few whom I’d describe as conservative, thought the argument had merit. “
In answer to written questions about the case after her confirmation hearing as solicitor general, Kagan told Sen. Arlen Specter (D-Pa.), “I thought the right thing to do was to defend that policy and to do so vigorously.” Specter still voted against her.
The third person on almost all short lists circulating around Washington, and beyond, is Diane Wood, a judge on the U.S. Court of Appeals for the 7th Circuit with strong connections to Obama’s Chicago legal circle. “She might be a little harder to go after,” said Levey, though groups opposing abortion rights are gearing up.
Their main line of attack involves Wood’s role in long-running litigation over whether abortion-clinic blockaders violated the Racketeer Influenced and Corrupt Organizations Act (RICO). The National Organization for Women invoked the law to seek damages from the protesters and to shut down their activities.
Wood sided with NOW twice, and twice was resoundingly reversed by the Supreme Court. The second time, critics alleged that she defied the high court’s ruling and found shaky grounds on which NOW could base a RICO claim. “Wood’s brazen defiance of the Court’s order displayed a lawless willfulness that ought to be disqualifying,” said Whelan.
Roy Englert Jr. of Washington’s Robbins, Russell, Englert, Orseck, Untereiner & Sauber, who represented the protesters for part of the litigation at the Supreme Court, said Wood’s handling of the case “raises the question of whether she saw everything through the lens of who the parties were.”
Chicago lawyer Fay Clayton, who represented NOW in the litigation, said the charges leveled at Wood are off-base. Clayton had offered Wood’s panel a valid alternate theory based on law review articles. “Judge Wood wasn’t reaching out for something peculiar in any sense of the word,” Clayton said. “It was a plain-language reading of the law.”
Judge Kim Wardlaw of the 9th Circuit, another jurist often mentioned for the vacancy, has drawn little criticism thus far. She is Hispanic — her mother is Mexican-American — and is listed as the first Hispanic woman on the federal appeals bench. As with Sotomayor, an appeal in one of Wardlaw’s opinions is pending before the high court. She wrote the en banc decision last year in Redding v. Safford Unified School Dist. No. 1 , finding that a public school strip-search of a middle school girl suspected of possessing ibuprofen violated the Fourth Amendment.
The two potential nominees with statehouse experience — current Michigan Gov. Jennifer Granholm and former Arizona Gov. Janet Napolitano, now Homeland Security secretary — may come in for criticism for having insufficient experience relevant to sitting on the Court. That in fact may be why Obama would pick them in the first place, but lack of judicial experience would no doubt be a major objection raised, given that all nine members of the current Court had been judges before. But both have more than passing knowledge of the Supreme Court.
As Arizona’s attorney general, Napolitano argued a significant death penalty case before the high court in 2002, titled Ring v. Arizona . Napolitano held her own in oral argument — but she lost, 7-2.
Granholm, who also formerly served as her state’s attorney general, did not argue a case, but her name is memorialized in a landmark case Granholm v. Heald . As Michigan’s governor she was named a defendant in the challenge to the state law that prohibited out-of-state wineries from shipping their products directly to in-state residents. The state lost the case, 5-4.
Tony Mauro can be contacted at email@example.com.