Supreme Court

On SCOTUSblog, Tom Goldstein has a long and interesting post in which he forecasts that (1) Justice Stevens “very likely will retire” this spring; (2) Justice Ginsburg “definitely will not”; and (3) President Obama will nominate Elena Kagan to replace Stevens.

My own assessments differ primarily in nuance from Goldstein’s (and that may well be because he has better access to inside information than I do). As I’ve been saying since September of last year, I believe that Stevens’s hiring of only one clerk for next term is a clear signal that he intends to resign. One circumstance that I think could change Stevens’s plan would be if Ginsburg’s health were to lead her to resign.

WASHINGTON-Democrats gearing up for a possible Supreme Court vacancy are divided over whether President Barack Obama should appoint a prominent liberal voice while their party still commands a large Senate majority, or go with someone less likely to stoke Republican
opposition.

The court's longest-serving member, Justice John Paul Stevens, has suggested that he may retire at the current term's end in June, when he will be 90 years old

Senate Republicans said that while they may not have the muscle to block a new Supreme Court nomination should Justice John Paul Stevens retire this term, the fight could turn out to be a boon for the party come November 2010.

Stevens, who will turn 90 in April, has only hired one law clerk for the court's current session, rather than the standard three or four. Because retiring justices only retain one clerk, speculation has grown that the leader of the court's left wing may be preparing to step aside.

TO: JCN MEMBERS AND INTERESTED PARTIES
FROM: WENDY E. LONG, COUNSEL
GARY A. MARX, EXECUTIVE DIRECTOR
DATE: JULY 28, 2009
RE: ZOGBY POLL FINDS STRONG OPPOSITION TO SOTOMAYOR CONFIRMATION

A new Zogby/O'Leary Report Poll confirms what JCN has been saying for a long time: The more the American public learns about Judge Sonia Sotomayor, the more they will agree that she is a liberal judicial activist who will decide the "hard" cases based on personal politics and feelings.

According to the Zogby poll released Monday, less than half of Americans (49%) support Judge Sotomayor's confirmation and an equal number oppose it. Hispanic voters are roughly split on Sotomayor, 47% in favor and 43% against, while Independent voters oppose her confirmation (55% to 44%) as do small business owners (52% to 42%).

Wendy E. Long, counsel to the conservative Judicial Confirmation Network, issued a statement saying that the firefighters "who protect the public safety and worked hard for their promotions did not deserve to become victims of racial quotas.''

Casting the decision as a repudiation of Sotomayor, Long added: "Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession."

"Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error.

"Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

"What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.

"The firefighters in New Haven who protect the public safety and worked hard for their promotions did not deserve to become victims of racial quotas, and the Supreme Court has now confirmed that they did not deserve to have their claims buried and thrown out by Judge Sotomayor."

"I think every senator understands that a vote on a Supreme Court nominee and judicial issues has the potential to be a salient electoral issue," said Gary Marx, executive director of the Judicial Confirmation Network. Already, lawmakers have begun shaping their responses to Sotomayor with future elections in mind.

Dear Senators:

Unfortunately, even with the additional submissions of June 15, 2009, Judge Sotomayor’s answers and document production to the Senate Judiciary Committee's questionnaire – and, accordingly, to the American people – are still incomplete.

Question 12(b) calls for Judge Sotomayor to disclose (and indeed, to provide four copies of) “any reports, memoranda, or policy statements you prepared or contributed to the preparation of on behalf of any bar association, committee, conference, or organization of which you were or are a member or in which you have participated . . . .” and to include any such documents produced by any working group of such organizations “even where you did not contribute to it.”

Ed Meese is at it again.

The Reagan-era attorney general, beloved by conservatives but long reviled by many liberals, is playing an important behind-the-scenes role in coordinating opposition to Supreme Court nominee Sonia Sotomayor.

And Wendy Long, counsel for the Judicial Confirmation Network, a leading anti-Sotomayor outfit, has also seized on Sotomayor’s affiliation with Legal Realism.

In an email to POLITICO, Long asserted that “because they believe that the law is essentially indeterminate and unknowable by ordinary citizens, Frank and Sotomayor and the Legal Realist School think that law is only what judges say it is.”

That approach “is destructive of self-government. It is the mode of judging that came to prominence in the 20th century that sees the courts as engines of legal, social, and political change,” asserted Long. “When judges drive such change, based not on the written Constitution and laws enacted by the people, judges use their own sense of personal ‘justice,’ based on their own experiences, personal views, feelings, and backgrounds. This is something both Jerome Frank and Sonya Sotomayor have embraced, and it is what in recent years has come to be referred to as ‘judicial activism.’”