Supreme Court

SCOTUS Lack of Judicial Experience

So the GOP now thinks one needs judicial experience to be on the SCOTUS.  But 40 of the 111 justices in history did not have judicial experience. 

Certainly, the list includes many of the most important justices, some conservative, some liberal. Among them, Chief Justice John Marshall, widely credited with establishing the judiciary as a genuinely co-equal branch of government; Chief Justice Earl Warren, who led the court in a period of expanding individual and civil rights; Chief Justice William Rehnquist, who led the court in reversing that direction; Justice Joseph Story, considered, along with Justice Marshall, to be one of the formative figures in early American jurisprudence; Justice Robert Jackson, a former attorney general whose Supreme Court opinions on the limits of executive power are routinely cited at Supreme Court confirmation hearings by the nominees and the senators; and Justices Louis Brandeis and Felix Frankfurter, to name just two more.

The “Morning Edition” story is by one of the best observers of the Court Nina Totenberg.

Real World Justices

The right is now trying a new message:  that Elena Kagan is too elite for the SCOTUS.  Given this need for only real Americans — those who lived in the Midwest or Southern small towns and avoided brainwashing at elite educational institutions — to become Supreme Court justices, who should be kicked off the Court? Antonin Scalia, who grew up in Trenton, N.J., and went to schools in NYC and then to Harvard? Or Sam Alito, another product of that un-American melting pot, the southern New Jersey suburbs of Philadelphia, who went to two other elite universities, Princeton and Yale? And yes, John Roberts and Clarence Thomas went to Harvard and Yale, respectively.

The Post Gets It Wrong on ‘Net Regulation

With all the seemingly intractable problems we face, you would think that surviving media would focus on the information we really need.  Yet today in The Washington Post we have a story about how President Obama’s is “to make a Supreme Court decision soon,” as if he were thinking of postponing it until after the November elections.  The article breaks no new significant ground.  Then we have a story about Attorney General Eric Holder’s “rare moment to celebrate,” the capture of the Times Square would be bomber.  The story could have been written by one of The Post’s sports writers, as it focused on Holder’s “good week.”  But The Post never seems to miss an opportunity to allow its reporters to make broad sweeping statements, such as Anne Kornblut’s characterization of Holder being “on rocky ground,” as if he’s let big innings inflate his ERA this week.

One would hope The Post learns that too many of its stories are nothing more than a series of events trying to find a trend the paper can report on.

But we have a stark reminder today that postulating where there is no news can bite them on the ass.

Dateline—May 3 by The Post’s Cecilia Kang:

The chairman of the Federal Communications Commission has indicated he wants to keep broadband services deregulated, according to sources, even as a federal court decision has exposed weaknesses in the agency’s ability to be a strong watchdog over the companies that provide access to the Web.

Dateline—May 6, again by Kang

The chairman of the Federal Communications Commission plans to seek clear-cut powers to regulate Internet service providers, redefining the government’s role over at least parts of the fast-growing industry.

Kang cited three sources for her May 3 story, all of whom are probably now in her dog house.  The story didn’t provide anything more than well-known talking points from each side of the regulation debate and ultimately, of course, proved false.  Why waste time on speculating what might happen before it does?  OK, that was a softball question on today’s exam: because The Post wanted to be the first with the news.

But don’t expect the paper to take the blame.  In today’s story,

Sources said Genachowski appeared to have shifted from late last week, when The Washington Post reported that it looked like he was inclined to keep broadband services deregulated.

The same sources, no doubt, who had no clue what was happening three days earlier.  It wasn’t The Post that got it wrong; it was the FCC Chairman Julius Genachowski who changed his mind. 

Watch soon for a flip-flopping story.

Scalia Likes the Schools of Ol’ Virginny

Supreme Court Justice Antonin Scalia says the constitution means exactly what the framers meant it to mean.  The framers were so narrow-minded that the didn’t allow for any change in society’s mores.

"Does it include same-sex marriage? A requirement for equal pay for equal work?'' he mused. Scalia said those who believe in an "evolutionary'' approach "close your eyes and decide what you think is a good idea.''

Using his "originalist'' philosophy, Scalia said he likely would have dissented from the historic 1954 Brown v. Board of Education decision that declared school segregation illegal and struck down the system of "separate but equal'' public schools. He said that decision, which overturned earlier precedent, was designed to provide an approach the majority liked better.

(Thanks to Politico for the link.)

UPDATE:  Looks like the newspaper may have been incorrect in quoting Scalia.

What We Need in a Supreme Court Justice

President Obama is getting lots of advice about who should replace retiring Supreme Court justice David Souter.  Basically, the advice is all the same”  “Pick one that’s like me!”

The new justice should be Hispanic, or black, or a woman, or gay, as if being a member of a class will engender jurisprudence.

I won’t argue against the notion that certain life experiences can infuse one’s view of what the Constitution protects.  And the right’s criticism that the new justice should only interpret the law, not make it, and be a “strict constructionist” is laughable.  The right, after all, was perfectly happy to have a close majority of the Supreme Court decide an election.  And they wanted the courts to interfere with a husband’s right to make health decisions for his incurable, terminal wife.  Don’t make law, they say, unless it is a law they like.

Empathy is not what I’d look for in someone to take Souter’s seat. Experience is.  Experience in the law, sure, but also in the fresh experience in America.  I think the president should chose someone who is close to his or her Americanization.  By that I mean I’d like to see someone who, if not a naturalized citizen, is the offspring of immigrants.  Someone who saw his or her parents struggle to learn the language and customs, fight discrimination and sacrifice to allow their child to fulfill the America dream.

Certainly a few of the usual suspects bandied about as nominees would fit this description.  But the important thing is not that they are Hispanic in particular, but that they have witnessed first hand the Americanization process.  I think such a person has a particular outlook on what the American experience can mean.  I don’t want them to rule in any particular way on immigration or any other issue.  I just think American justice and freedom is a bit fresher in their minds than those of us who aren’t as close to  the immigrant experience.

What are the GOPers Smoking?

As the GOP tries to find its voice, may we suggest they first reverse the Bush administration’s rejection of reality.

In this story about the coming decision to replace Justice David Souter on the Supreme Court, we have Wendy Long of the Judicial Confirmation Network and a former clerk to Justice Clarence Thomas saying,

The current Supreme Court is a liberal, judicial activist court. … If Obama holds to his campaign promise to appoint a Justice who rules based on her own ‘deepest values’ and what’s in her own ‘heart’ – instead of what is in the Constitution and laws — he will be the first American President who has made lawlessness an explicit standard for Supreme Court Justices.”  (emphasis added)

Let’s forget that liberals have been losing most SCOTUS decisions to a 5-4 conservative majority.  But then to suggest that because Obama might consider life experiences, he therefore is looking for lawlessness as a standard for selecting a justice?

Well, reality seems out of reach for GOPers.

The GOP obviously does not have much power in D.C. these days, but just like we helped ourselves by opposing the deficit-busting stimulus, opposing left-wing nominees like her is our path back to the majority,” one Republican source said. (emphasis added)

I’m almost starting to feel sorry for the party of Coolidge, Hoover and Nixon.  It’s not that they’re smoking something; they’re eating their own shit.  That’ll make you sick.