Lines in the sand

It seems that Republicans in the Senate want to make sure that they set the boundaries for judicial picks.

“I promise a fair hearing, and I promise that the nominee will have a chance to explain any criticisms that are raised,” Mr. Sessions said on NBC’s “Meet the Press” on Sunday. “But if a nominee is one that is so activist like Goodwin Liu that’s just been nominated — who’s written that, that the Constitution requires welfare and health care to individuals — if it’s somebody like that, clearly outside the mainstream, then I think every power should be utilized to protect the Constitution. We’ll not confirm somebody like that.”

Supporters of Mr. Liu, nominated for the United States Court of Appeals for the Ninth Circuit, in San Francisco, argue that critics have exaggerated his writings to portray him as an ideologue. A 2008 Stanford Law Review article by Mr. Liu about welfare rights, which Mr. Sessions referred to, focused on small-scale disputes over Congressionally enacted programs — like “invalidating statutory eligibility requirements” — not creating welfare programs based on judicial fiat.

Still, Mr. Liu has been more open in expressing liberal political views — like support for affirmative action and same-sex marriage — than Mr. Obama’s other appeals court nominees. In that sense, he is arguably the first Obama nominee who is the equivalent of some of the most controversial nominees by Mr. Bush, several of whom Democrats delayed or blocked.

Mr. Liu also earned conservative enmity by criticizing Mr. Bush’s two Supreme Court appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. And a book he co-wrote argues that judges should interpret the Constitution “in light of the concerns, conditions and evolving norms of our society” — an approach some conservatives say enables judges to impose their own political values.

Born to Taiwanese immigrants, Mr. Liu, 39, earned degrees from Stanford and Yale Law School. A Rhodes scholar, he was a Supreme Court clerk and worked briefly at a law firm before becoming a law professor.

The Obama administration sought to focus on Mr. Liu’s biography and the fact that he would be the only Asian-American judge on the federals appeals bench. But Republicans twice managed to delay his hearing, giving conservatives extra time to mine his record for ammunition and build opposition.

M. Edward Whelan III, a former Bush administration lawyer who analyzes Democratic nominees’ legal writings for National Review, recently wrote that Mr. Liu’s record “represents a volatile mix of aggressive left-wing ideology and raw inexperience.”

And in a recent memorandum to “the conservative movement,” more than a dozen conservative leaders — including Curt Levey of the Committee for Justice, Gary Bauer of American Values and Wendy Wright of Concerned Women for America — characterized Mr. Liu as “unfit” to be a judge because he had an “extreme liberal agenda that he would impose from the bench.”

Mr. Liu’s defenders object to that characterization. They pointed to statements of support from a handful of other conservative figures, including several who called him open-minded because he supports allowing students in low-quality public schools to use vouchers to study elsewhere.

Kenneth W. Starr, the dean of Pepperdine’s law school and former Whitewater prosecutor, co-wrote a letter saying Mr. Liu should be confirmed because he “is a person of great intellect, accomplishment and integrity, and he is exceptionally well-qualified to serve on the court of appeals.”

So, if support for same-sex marriage (in the 9th Circuit, no less) is an example of "liberal overreach," it's going to be an interesting debate over a Supreme Court nominee and a reawakening of the Culture Wars. Yippee.

Judicial temperament and the State of the Union

Samual Alito, activist and expressive judge.

The Justices are seated at the very front of the chamber, and it was predictable in the extreme that the cameras would focus on them as Obama condemned their ruling. Seriously: what kind of an adult is incapable of restraining himself from visible gestures and verbal outbursts in the middle of someone's speech, no matter how strongly one disagrees -- let alone a robe-wearing Supreme Court Justice sitting in the U.S. Congress in the middle of a President's State of the Union address? Recall all of the lip-pursed worrying from The New Republic's Jeffrey Rosen and his secret, nameless friends over the so-called "judicial temperament" of Sonia Sotomayor. Alito's conduct is the precise antithesis of what "judicial temperament" is supposed to produce.

It is sweet, sweet...er...justice, that Sam Alito must call "colleague" someone he tried very hard* to keep out of Princeton.

As for the speech itself, I haven't had much to say about itmainly because I've been busy doing the devil's work, but mostly because I don't have much to say about it, other than, as is usually the case when I listen to the president, I'm glad he's the president.

One thing I think the speech seems to have effectively done was to cool the anger from the left for the time being. Any fears that Obama would go into a defensive crouch were put to rest.

And I have to ask, does the image of Eric Cantor and John Boehner doing fair impersonations of Tab Hunter** and George Hamilton** in their primes inspire Republicans?

* As an aside, the only indication that Alito was a member of CAP comes from his job application to be Edwin Meese's Deputy Assistant AG. Republicans.

UPDATE: ** Not that there's anything wrong with that.

Activist judges

Heard the one about one of the most significant US Supreme Court decisions that, it seemed, almost no one paid any attention to?

Yeah, me neither. But it gives Federal judges enormous power to determine what's "plausible" and what's not.

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath.

This approach, particularly when coupled with the American requirement that each side pay its own lawyers no matter who wins, gave plaintiffs settlement leverage. Just by filing a lawsuit, a plaintiff could subject a defendant to great cost and inconvenience during the pre-trial fact-finding process called discovery.

Mark Herrmann, a corporate defense lawyer with Jones Day in Chicago, said the Iqbal decision will allow for the dismissal of cases that would otherwise have subjected defendants to millions of dollars in discovery costs. On the other hand, information about wrongdoing is often secret. Plaintiffs claiming they were the victims of employment discrimination, a defective product, an antitrust conspiracy or a policy of harsh treatment in detention may not know exactly who harmed them and how before filing suit. But plaintiffs can learn valuable information during discovery.

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

The old world was mechanical. A lawsuit that mouthed the required words was off and running. As the Supreme Court said in 1957 in Conley v. Gibson, a lawsuit should be allowed to go forward “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Things started to change two years ago, when the Supreme Court found a complaint in an antitrust suit implausible.

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.

“It obviously licenses highly subjective judgments,” said Stephen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. “This is a blank check for federal judges to get rid of cases they disfavor.”

And while few in the press paid much attention to the case, Federal judges have and they've been exceptionally busy throwing out cases they don't much care for.

Judicial activism and the Dred Scott decision

To commemorate today's truly empathetic Supreme Court majority decision, here's an example of real judicial activism.

[Scott] was an opinion [Roger B. Taney] had long wanted to write. Eighty years old, the chief justice was frail and ill. The death of his wife and daughter two years earlier in a yellow fever epidemic had left him heart-stricken. Yet he clung to life determined to defend his beloved South from the malign forces of Black Republicanism. In his younger days Taney had been a Jacksonian committeed to liberating American enterprise from the shackles of special privilege. As Jackson's secretary of the treasury he had helped destroy the Second Bank of the United States. His early decisions as chief justice had undermined special corporate charters. But the main theme of his twenty-eight year tenure on the Court was the defense of slavery. Taney had no great love of the institution for its own sake, having freed his own slaves. But he did have a passionate commitment "to the southern life and values, which seemed organically linked to the peculiar institution and unpreservable without it." In private letters Taney expressed growing anger toward "northern aggression." "Our own southern countrymen" were in great danger, he wrote, "the knife of the assassin is at their throats." Taney's southern colleagues on the Court shared this apprehension, according to historian Don Fehrenbacher; Justice Peter Daniel of Virginia was a "brooding proslavery fanatic" and the other three were "unreserved defenders of slavery." Because of the "emotional commitment so intense that it made perception and logic utterly subservient," the Dred Scott decision was "essentially visceral ian origin...[sic] a work of unmitigated partisanship, polemical in spirit [with an] extraordinary cumulation of error, inconsistency, and misrepresentation."

--James M. McPherson, Battle Cry of Freedom, pages 173-4, "Mudsills and Greasy Mechanics for A. Lincoln"

In Supreme Court cases, I guess what matters is for whom the majority feel "empathy."