Posted by Eric on July 14, 2009
As I watch the Sotomayor confirmation hearings it is becoming increasingly evident that “Obama’s Harriet Myers” is just a slip-up away from completely fizzling out. Thanks to the probing questions of the Judiciary Committee’s Republican heroes, the sheer stupidity and unqualified “intellectual shallowness” of Sonia Sotomayor is fully on display.
Mental lightweight Sotomayor should be withdrawing from consideration as a Supreme Court nominee any minute now. Any minute…
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Posted by Eric on June 26, 2009
Over at RealClearPolitics, Cathy Young pens a sharp piece about a quasi-sequel to Catcher in the Rye written by a Swedish humorist called, 60 Years Later: Coming Through the Rye. A judge has put a restraining order on the novel, in compliance with a copyright infringement claim filed by J.D. Salinger’s attorneys. Young uses this to make some smart observations about the draconian nature of intellectual property laws in the United States and invoked copyright critic Lawarence Lessig’s belief that, “unless copyright law is reformed, it will end up stifling the creativity of a generation.” I think that’s correct, but let’s also remember that overbearing copyright laws like the DMCA stifle technological innovation and that stringent patent laws prevent things like medical patients buying life-saving pharmaceuticals at reasonable prices.
But corporate copyright holders are powerful and have lots of money that they share with congresspeople who also like power and lots of money. That’s why every time Mickey Mouse’s copyright is about to expire, congress seems to pump out a new, stricter sets of laws and, whadya know, Disney still owns the rights to Mickey. While congress changing its mind isn’t very likely, it is always important to note that current copyright laws are pretty contrary to the founding fathers’ wishes. From Article 1, Section 8 of the Constitution the founders write:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The Commerce Clause, at least in its current application, would certainly give congress jurisdiction to pass intellectual property laws, so Constitutional objections probably are a waste of time. Still, the founders were right and current copyright enthusiasts are wrong. Our current intellectual property laws are misguided and this should be repeated again and again.
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Posted by Eric on June 9, 2009
Yesterday in a 5-4 decision, the Supreme Court ruled that elected judges must disqualify themselves from hearing cases involving a person who contributed a significant sum of money to the judge’s campaign coffers. The case comes amidst the Sotomayor “judges as policymakers” hullabaloo and what’s interesting is Chief Justice John Roberts’ dissenting opinion makes clear reference to the policy implications of the court’s decision. Matt Zeitlin explains:
[Roberts] then goes on to list 40 possible sources of bias that state courts would have to consider — with no guidance from the Supreme Court — and argues that because the Court’s decision could open up a Pandora’s box of bias claims, “This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”
Now, these are perfectly fair points to make and the issues that Roberts raises are something that the Court should consider. But you’ll notice that they have nothing to do with the letter of the law or the due process clause specifically. Instead, Roberts is pondering the policy implications of the majority’s decision and coming to the conclusion that those outcomes would be negative ones.
This isn’t really surprising for judicial observers but it is something that always bears repeating. With the sometimes-exception of Justice Kennedy, the Supreme Court is an extremely partisan body. The Rehnquist Court was no different. Take the decision in Bush v. Gore: There you had five supposedly state’s rights conservatives forcing the state of Florida to stop counting ballots, making conservative George W. Bush the de facto president. The dissenters were four liberals siding — not with the federal government, as their judicial philosophies would seem to imply they would — but with the state of Florida. That is, none of the nine justices rooted their decision in explicit Constitutional mandates or even meaningfully on past precedent. Rather, the Republicans voted like loyal Republicans and the Democrats voted like loyal Democrats.
All this talk about “strict constructionists” and “activist judges” makes for good talking points, but it has little to do with how the court operates. When conservatives oppose Sonia Sotomayor for being a judicial activist, they are for all intents and purposes opposing her for being a Democrat. That may or may not be a reasonable action, but it should be understood for what it is.
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Posted by Eric on June 7, 2009
Last week, Stephanie Mencimer penned a smart Mother Jones article on Sonia Sotomayor’s way with words. Although impressed with her intellect and accomplishments — and still confident in her ability to do the job — Mencimer worries that her prose may not be on par with some of the court’s heavy weights:
The court’s influence and lasting legacy is what it commits to paper. Sotomayor may be a force of nature in the courtroom, where she’s said to shine, but it’s hard to imagine her going head to head in print with, say, Antonin Scalia. The conservative justice is the master of the wicked one-liner and, while something of a smart aleck, he influences the public debate on so many issues because of his writing—whether he’s in the majority or dissenting and whether he’s right or wrong. Scalia’s opinions are cited in leading constitutional law casebooks more than any other sitting justice. In the 2002 case Republican Party v. White, for instance, he quipped, “campaign promises are—by long democratic tradition—the least binding form of human commitment.”
Because of the subjective nature of jurisprudence, it is incredibly important to have well-written opinions; a precedent articulated forcefully will be much more persuasive when future courts look towards the ruling. In that regard, you would expect that this would make conservatives more receptive to her nomination while giving liberals some pause, but of course it won’t play out that way.
On a tangential note, I will say I’m a bit surprised that justices still write their own opinions. Nobody minds that the president has a team of speechwriters and I doubt anyone would be shocked to learn that most Senators and Representatives don’t author their floor speeches, and none of them write their press releases or constituent letters. Presumably respected justices have clerks with quality phrase-turning skills, so why don’t they get them in on drafting the language of their judicial decisions?
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