Why not Harriet Miers?

Sonia Sotomayor will be the new Supreme Court Justice.

Here’s a sentence I never imagined I’d write: Jennifer Granholm would have been preferable.

This appointment does not stoop – quite – to the level of Dubya’s nomination of Harriet Miers in one sense: Sonia Sotomayor is not an immediate crony of Barack Obama’s. It does share some characteristics, however. Sotomayor is hardly the most qualified appointee. Sotomayor is a female.

Otherwise, it is a much worse appointment. While it avoids a dubious, even reckless, emphasis on personal loyalty, it is solely political pandering. Personal loyalty is no reason to nominate a person as a Justice of the Supreme Court, calculated cynicism is not a justification for anything.

Live by identity politics. Rise through identity politics. Sotomayor will be confirmed, but there is some fun to be had with the prospect. Two questions decided by Sotomayor as a judge on the U.S. Court of Appeals for the Second Circuit are currently on the docket of the Supreme Court.

Ricci v. DeStefano, is a reverse discrimination case summarily, actually insultingly, rejected in an opinion joined by Ms Sotomayor. This article is worth reading in full. Here’s a significant bit, but there’s more good stuff at the link:

…firefighters in New Haven, Conn., who say they passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

City officials said they wanted to add diversity to management ranks within the fire department. They made special efforts to design a test process that would reduce any bias that might disadvantage minority candidates.

But when no blacks and only two Hispanic applicants qualified for consideration for the management jobs, the city decided to scrap the entire test.

It should be noted that Frank Ricci is dyslexic and prepared for the test by studying 8 or more hours every day. He spent over $1,000 on books and tutoring.

This decision of Judge Sotomayor’s is particularly interesting given her ruling in Bartlett v. New York State Board of Law Examiners that a law school graduate with a reading and learning disability was entitled to extra time in taking bar exams. On appeal, the Supreme Court ruled that the Americans With Disabilities Act did not apply because Bartlett’s condition could be managed with glasses and medication. Ordered to retry the case, Sotomayor rejected the SCOTUS opinion, coming to the same conclusion she had made earlier.

The plaintiff was Dr. Marilyn J Bartlett. Her bio is here, these are the degrees listed:

  • B.S., State College at Worcester, Massachusetts, in Early Childhood Education -1970;
  • M.S.Ed., Boston University, Boston, Massachusetts, in Special Education -1976;
  • Ph.D., New York University, in Organizational and Administrative Studies -1982;
  • J.D., Vermont Law School -1991

Dr. Bartlett attempted the New York State bar exam 5 times and claims she was never given appropriate “accommodation.” One wonders if she was simply a Disability Advocate looking for trouble and how much accommodation her degrees required (beyond glasses and medication). She is said to “decode” at a 4th grade level. Whatever that means, it doesn’t sound like she could get a Ph.D, without studying a lot and probably with a great deal of assistance. I wonder if she paid for the assistance?

Judge Sotomayor wrote:

“Marilyn Bartlett suffers from a learning deficit that evinces itself as a difficulty in reading the speed, fluency, and automaticity of an individual with her background and level of intellectual ability. Despite this impairment, plaintiff obtained a Ph.D. in educational administration and a law degree. By virtue of superior effort and not a
small amount of courage, Marilyn Bartlett has been able to succeed academically and professionally despite the limitations that her impairment has placed upon her.

There’s no information on what level Frank Ricci “decodes,” but asking him about Sotomayor’s empathy might produce an interesting response. Maybe if he’d gotten a Ph.D. first…

The second case, Croll v. Croll, presents the same question as Abbott v. Abbott (the case presently before SCOTUS). These cases are about child custody and involve interpretation of the Hague Convention on International Child Abduction. Judge Sotomayor dissented from the opinion of the Second Circuit, citing the manner in which foreign courts had interpreted the question.

Judge Sotomayor argued that a broader interpretation of “custody” was more in line with the “object and purpose” of the Convention, and that this was how foreign courts had considered the issue.

Perhaps judge Sotomayor will score with this one. Not, I suspect, with Justice Scalia, however.

In other news,

Sotomayor asserts (Maloney v. Cuomo) that the Second Amendment only applies to the federal government. In so doing she explicitly rejected District of Columbia v. Heller, preferring earlier SCOTUS decisions (Presser v. Illinois, 1886) to underpin her decision. Here, she appears willing – again – to overrule SCOTUS. This case appears likely to be appealed. It will bring the incorporation clause of the 14th Amendment into focus if SCOTUS takes it.

The Supreme Court reversed Judge Sotomayor in Malesko v. Correctional Services Corporation

And overturned her decision in Entergy Corp. v. Riverkeeper, Inc.

On the two Sotomayor cases presently before SCOTUS, you might think delaying a decision on them would be preferable to the Obama administration so that Sotomayor might not be embarrassed by being overturned twice more while confirmation hearings are in progress. OTOH, you would think (wouldn’t you?) that she will have to recuse herself if she is confirmed before these cases are determined. This would seem to increase the likelihood she’ll be overturned while a sitting Justice.

G. O. P. 5

Credit where it is due: Obama Administration opposes challenge to 2nd Amendment rights.

March 9 (Bloomberg) — The U.S. Supreme Court left intact lower court decisions shielding Smith & Wesson Holding Corp., Sturm, Ruger & Co. and other gunmakers from lawsuits pressed by New York City and shooting victims in Washington, D.C.

…President Barack Obama’s administration joined the gun industry in urging the Supreme Court not to question the constitutionality of the 2005 law, known as the Protection of Lawful Commerce in Arms Act. Like the Bush administration, Obama’s lawyers didn’t take a position on whether the federal law required dismissal of the lawsuits.

RTWT, it is interesting to know the origins of this suit. Hint: Giuliani Opposes Pistols.

Code word for socialism

It’s not just a gaffe in an answer to Joe the Plumber. It’s an Obama core principle. Saying so is racist, of course, because if socialism is a “code word,” so must redistribution be, especially in the context of the Civil Rights movement – which Obama uses to begin a riff on his disappointment that the Supreme Court didn’t mandate looting under the “forced equality” protection clause, as established in Bergeron vs Glampers.

In case you didn’t get that…

It [the Warren Court] didn’t break free from the essential constraints that were placed in the Constitution by the Founding Fathers … it [the Constitution] doesn’t say what the federal government or the state government must do on your behalf

Oh, but it does. It enumerates the powers precisely. They don’t include redistribution of wealth but, according to Obama, that Founders’ oversight is what’s been wrong with America for over 200 years. He’ll fix it by helping us “break free” from Constitutional law. It seems to hinge on how you interpret “essential,” or maybe “constraints.” Must be code words.

I’m waiting to hear how he’s going to reconcile that position with this:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Barack Obama: Change you Hope never to see.

Correcting the record

Apropos of the post immediately below is this entry at Reason magazine’s “Hit & Run”:

Gun Nuts Like Lawrence Tribe
Jacob Sullum
May 7, 2007


This short piece is worth checking since you will undoubtedly hear that the majority in Heller had to resort to judicial activism. They ignored the Constitution in order to implement their political preferences. This fabrication is important to Liberals because they will point to Heller as evidence originalist Justices are hypocrites. It will be used to justify the activism of the “living Constitution” cadre. It is a lie.

In Heller, the majority simply corrected the historical revisionism of the activists. As pointed out yesterday, if they’d been activist they’d have incorporated the 2nd Amendment into the 14th.

A close run thing: Life, liberty, and the pursuit of happiness

Without the first of these the second and third are problematic.

A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.
– Second Amendment to the U.S. Constitution.

SCOTUS has narrowly, both in the margin and in the specifics of the ruling, affirmed that the Second Amendment describes an individual right. Some of the major points:

  • “… we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.”
  • “The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.”
  • “Like most rights, the right secured by the Second Amendment is not unlimited.”
  • “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

What the Court found was narrow; that an absolute ban on possessing a working firearm in one’s own home is, if one is of sound mind and character, unconstitutional under the Second Amendment. The decision is remarkable mostly for the fact that only five out of nine Justices believe the Constitution protects so basic a right of self defense.

Another short summary of the majority opinion can be found at Of Arms and the Law. See also, SCOTUS.blog – DC v. Heller Round-Up – for many links to interesting commentary, pro and con.

What the Court has done is ensure that much litigation will result with the intent of forcing lower courts to fill in many blanks. It is clear that much remains to be decided: Commentary: So, what’s next on guns?

The gun-control lobby is not going to disappear, see Lessons For Gun Rights Supporters From the Property Rights Experience I – The Importance of Ideological Divisions on the Court: and Lessons for Gun Rights Supporters from the Property Rights Experience, Part II – A Narrowly Defined Right May Not be Much Better than No Right at All:

Despite years of propagandizing by the likes of the Brady Center, 73% of Americans agree that the individual right to possess a firearm is Constitutionally guaranteed. The Court is by no means obligated to follow the polls, but on a civil rights decision, lacking any real precedent and where both sides used originalist arguments (What was the intent of the Founders?), this is surprisingly out of step. Five to four is, in the words of Bill Dupray, “One Vote Away From Revolution.” If this seems hyberbolic you might want to consider this aspect of the decision:

One aspect of the Heller majority opinion that has not yet attracted the attention of commentariat, but may be greatly important of the long run, is the presence of natural law.

Heller reaffirms a point made in the 1876 Cruikshank case. The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution:

“it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ’shall not be infringed.’ As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…”

This is consistent with Blackstone’s language, quoted by the majority, that the right to arms protects the “natural right of resistance and self-preservation.” The majority writes that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense ‘of one’s person or house’ — what he called the law of ‘self preservation.’”

[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…” What, then, would be the proper response to attempts to extinguish that right? Revolution is not too strong a reponse. Five/four the other way suggests, at the least, that secession is justified. Certain Montanans have already so argued.

I recommend exploring The Volokh Conspiracy generally on this decision, but here are two links I found particularly interesting in implications for the future:

Heller and incorporation of the Second Amendment: …the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue:

With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.

This is not how the Liberals on the Court would have approached the opposite result, they would have “incorporated” the collective right interpretation even though they had not been asked to rule on it. The Justices in the majority are to be commended for their explicit restraint.

The collective rights argument was examined in the context of the Constitution as a whole and was found wanting. The Second Amendment, interpreted collectively, would be the only case where the Founders defined a collective right when using the term “the people.” The fallacy is even acknowledged, despite their explicit political preferences, by heavy duty liberal Constitutional experts such as Lawrence Tribe and Alan Dershowitz.

Supreme Court Adopts Individual Rights Interpretation of the Ninth Amendment:! Buried in Justice Scalia’s exegesis on the Second Amendment is a wonderful gift to those of us who study and care about the Ninth Amendment:

The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.

Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.

The individual right interpretation was resisted vigorously by the dissenting Justices, including an attempt by Justice Stevens described, one might say ridiculed, in a Scalia footnote:

JUSTICE STEVENS is of course correct . . . that the right to assemble cannot be exercised alone, but it is still an individual right, and not one conditioned upon membership in some defined “assembly,” as he contends the right to bear arms is conditioned upon membership in a defined militia. And JUSTICE STEVENS is dead wrong to think that the right to petition is “primarily collective in nature.”

In fact, if Justice Stevens is to be taken seriously in this argument, it seems that the dictum “one man, one vote” describes a collective rather than an individual right.

Justice Breyer, hardly to be outdone, wrote an opinion which may well serve as “The Idiot’s Guide to what NOT to do as a dissenting SCOTUS Justice.” He agrees with Stevens that the right is collective, but goes even further to say that individual or collective doesn’t really matter anyway: The government is justified in arbitrarily curtailing possession of firearms if it sees an “imbalance” in not so doing. We don’t need to amend the Constitution, we merely need make it subservient to current political need. Unfortunately for Breyer, his argument is self destructive: Justice Breyer’s self-refuting dissent in Heller:

I suspect that it may go down in history as one of the strongest arguments AGAINST balancing tests. If the restriction on liberty were trivial, then it might be easy to use a balancing test to uphold the DC statute’s ban on handguns. Or if handgun bans were known to be spectacularly successful in reducing death and violence, then fair-minded judges might determine that even very substantial restrictions on liberty could be balanced away by the overwhelming benefit of gun control.

But gun control has very little effect on rates of violence or death (I think the evidence, while contradictory, points on balance to a small reduction associated with some gun controls.) Given this, the DC case should be an easy one for balancing: a major restriction of liberty (an outright ban) cannot be justified by a small or nonexistent gain in public safety.

That Justice Breyer reaches the opposite result from what should be a very easy case of balancing major restrictions of gun rights against minor net benefits suggests either that Justice Breyer is an unusually biased judge or – more likely – that the balancing test he posits is not workable in practice. Thus, Breyer’s own opinion may be the strongest possible refutation of his jurisprudential approach.

A third interpretation is that Breyer actually finds the right of self-defense trivial compared to the intent of the state to protect its citizens. This is no more ridiculous than any other reading.

Scalia had this to say about “balancing” a right enumerated in the Bill of Rights against legislative fads:

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

So what has Heller changed? There is much litigation to follow, so the only immediate difference is a reversal of the burden of proof. The state now has to prove an individual does not qualify for the right to possess a working firearm under fairly limited rules. Before, individual qualifications did not signify because of an outright prohibition.

In practice, this will be a small difference. Do you remember the arbitrary CCW permit issuance rules Michigan observed under “may issue?” “Shall issue” is where SCOTUS took us.

I predict a the creation of a regulatory morass by jurisdictions such as D.C., Chicago and San Francisco – all intended to complicate the “fairly limited rules.” Many of these new regulatory attempts will eventually come before SCOTUS. Before Heller, they would not have.

This is a significant victory, but it is only the foundation against which future regulation will be measured.

Remember, “The same folks who can read the Constitution and Bill of Rights and find an unassailable right to abortion and gay marriage can’t find a right to possession of a firearm.”

McCain and Obama agree

…that Supreme Court Justice Anthony Kennedy is wrong when he says:

The death penalty is not a proportional punishment for the rape of a child.

But think, Justice Kennedy may be right. He could mean a long, slow, painful death is “proportional,” and that simple death by lethal injection is not enough punishment.

…Nah, the Eurolords in Brussels wouldn’t like that attitude.

OTOH, Massachusetts Democrat Rep. James Fagan takes Justice Kennedy’s opinion to heart, and goes him one better. Fagan has threatened “to torment and “rip apart” child rape victims who take the witness stand…”

“I’m gonna rip them apart,” Fagan said of young victims during his testimony on the bill. “I’m going to make sure that the rest of their life is ruined, that when they’re 8 years old, they throw up; when they’re 12 years old, they won’t sleep; when they’re 19 years old, they’ll have nightmares and they’ll never have a relationship with anybody.”

It would be “proportional” for Rep. Fagan to be incarcerated, ideally for child molestation, in an institution where he might have the opportunity to become the witness he so despises. Mulitiple times.

Fagan can stare into the face of evil and not only defend it, but he promises to ensure the innocence it has contaminated is utterly destroyed. No biggie. After all, it’s just the logical conclusion of Justice Kennedy’s opinion that evil doesn’t actually exist.