From Huffington Post: Let the Hearing Begin

The Senate Judiciary Committee will convene Monday morning at 10:00 a.m. to begin the hearing on Sonia Sotomayor’s nomination to become an associate justice of the Supreme Court. The hearing will be a consequential moment in our history, but not so much because the confirmation of Judge Sotomayor is on the line. Barring some unforeseen and very unlikely event, Republicans will quickly back off attacks on Judge Sotomayor herself. They recognize that it is politically dangerous to criticize her given her appealing personal story of rising from a housing project in the Bronx to the pinnacle of our judiciary through enormous talent and hard work, her record as a moderate who feels bound to follow the law strictly on the bench, and her ethnicity and gender.

Instead, they will use the occasion to promote their distorted view of the law – not what it is but what they would like it to be in a republic ruled by hard-right judicial activists such as Chief John Roberts and Justice Samuel Alito. For that reason, the week will offer an enormously important contrast between the nominee and her supporters and this ominous Republican vision.

So, what are the themes that Republicans will raise in response to Judge Sotomayor’s nomination?

First, they will highlight the Ricci case, the challenge by white firefighters to New Haven’s voluntary effort to avoid discrimination against minority firefighters. Judge Sotomayor, of course, sat on a panel of the Second Circuit that summarily affirmed the lower court’s decision that New Haven’s decision to scrap a test for promotion of firefighters to avoid disproportionately excluding black and Hispanic applicants was consistent with Title VII of the Civil Rights Act of 1964. Repudiating decades of settled civil rights law, the Supreme Court reversed that decision in a 5-4 opinion. The five conservatives on the Court, who have traditionally been hostile to claims of discrimination by minorities, created a new rule and broke with standard practice by directing judgment for the white firefighters, rather than sending the case back to the lower court so that New Haven could prove that it met the new standard. While Republicans will criticize Sotomayor’s participation in the panel decision and will bring in the lead plaintiff, Frank Ricci, to testify (surely they would not suggest that empathy for Ricci should influence the result), the fact remains that 11 of 21 judges who reviewed Mr. Ricci’s claim ruled against him. Judge Sotomayor can hardly be considered out of the mainstream or at fault for failing to apply the law that the conservatives made up when the case reached the Supreme Court.

Republicans will also use the hearing to promote guns. In their continuing quest to ensure that every American is armed, they will criticize a decision in which Judge Sotomayor, sitting on a unanimous panel of the Second Circuit, held that the Second Amendment to the Constitution, which ensures against federal limitations on an individual right to bear arms, does not prohibit state limitations on guns. Unfortunately for Republicans, the Supreme Court has held the very same thing three times. To find fault with Judge Sotomayor’s decision, her critics have to argue that she should have thrown the rule of law to the winds and ignored Supreme Court precedent. Even conservative icons of the bench, Judges Frank Easterbrook and Richard Posner, have agreed with Judge Sotomayor on this issue. That, however, is unlikely to stop conservatives from using the occasion to lecture about the sanctity of the Second Amendment as a guarantee of fundamental rights.

Republicans will also raise questions about abortion – even though Judge Sotomayor has never ruled on abortion and does not have any known public statements on the issue. In any event, support for Roe v. Wade, which is the law of the land, can hardly be a ground for disqualification from the Supreme Court. There will be no traction in criticizing Judge Sotomayor on this issue, but Republicans are likely to use the opportunity to burnish their anti-choice credentials, as if anyone had any doubt.

Republicans will criticize Judge Sotomayor for two decisions involving takings of private property by local governments. Again, both decisions are based directly on Supreme Court precedent – namely the Court’s controversial but binding decision in Kelo v. City of New London. Because Kelo has proven unpopular, however, Republicans will try to tie Judge Sotomayor to it in a critical manner, even though it remains the law of the land, which she, as a judge, is required to apply.

Republicans will also use Judge Sotomayor as a foil to fulminate against importing international law as the basis for deciding domestic legal issues. Judge Sotomayor has been very clear that she does not believe that the law of other nations or international law offer a basis for decision in the courts of the United States. Indeed, there is nothing in any of her opinions that suggests otherwise. Republicans, therefore, will attempt to misconstrue a speech she gave in which she allowed that good ideas may arise outside the United States and we should be receptive to them. That is a far cry from endorsing international sources of law as binding in the United States.

Finally, Republicans will attack the activities of the Puerto Rican Legal Defense Fund (PRLDEF), which Judge Sotomayor served as a member of its Board of Directors prior to going on the bench. PRLDEF is an outstanding organization that has done exceptional work in promoting civil and constitutional rights. It operates in the great tradition of the NAACP Legal Defense Fund and other public interest legal organizations that have helped America to fulfill its promise as the cradle of liberty and opportunity. Republicans should be ashamed of trying to score political points off of Judge Sotomayor’s commitment to the proud tradition of public interest law.

In sum, next week will do more than allow Americans to learn more about Judge Sonia Sotomayor, it will also present an opportunity to examine the legal agenda of the hard-right. In contrast to the sterling nominee who will sit in front of the Senate Judiciary Committee as the embodiment of the opportunities that America, because of its values and laws, provides to those who work hard, the ultraconservative legal agenda will appear small, ungenerous, mean-spirited, and exclusive.

Let the hearing begin.

Almost 1200 professors from across the country endorse Sotomayor

Today, law professors from across the country released a letter in support of Judge Sonia Sotomayor’s nomination to the Supreme Court.

With almost 1,200 signatories from 170 law schools in 49 states (Alaska does not currently have a law school) the letter has been signed by many renowned legal scholars from across the ideological spectrum.

On a call today, six of those professors: Charles Ogletree (Harvard), Laurence Tribe (Harvard), Arthur Miller (NYU), Daniel Richman (Columbia), Evan Caminker (Michigan), and Robert Weisberg ( Stanford) --further explained the outpouring of support for Judge Sotomayor in the legal community.

Professor Laurence Tribe of Harvard Law commented on the diverse and numerous signatories. “I don’t know of any instance where there has been anything like this diversity – geographically and ideologically it is the most diverse as well as longest list in support of a Supreme Court nominee.” He also noted that conservative attempts to cherry pick one or two cases from her record does not represent who she is as a jurist and that casting such doubts on Judge Sotomayor would essentially mean that anyone with a substantial record would be unconfirmable. Professor Tribe dismissed this notion, observing that he couldn't "think of a more solidly confirmable candidate in decades."

Professor Charles Ogletree, also of Harvard, reflected on Sotomayor’s record in regard to the current make-up of the court. “Today there are only moderate judges on the court, conservatives, and ultra-conservatives. No liberals. Thousands of Sotomayor's opinions have never indicated what I consider liberal or progressive points of view. Always very pragmatic, she will be a tremendous asset to the court.”

Professor Arthur Miller of New York University noted that Judge Sotomayor's legal background will make her a refreshing addition to the Court. "She will bring to the court rich experience at the trial and appellate level. She will bring that trial experience to a court that is 100% appellate in background with no experience in the trenches." He further explained that much of what the Supreme Court does is promulgate rules for trial judges and juries to follow, and having a justice with trial experience will help the Supreme Court better craft those decisions in a way that lower courts can more easily apply. Professor Miller ultimately described Sotomayor as a "centrist whose crowning characteristic will be her professionalism" and he is "delighted that someone who brings process, craft, caution, respect and a great deal of tolerance" has been nominated.

The letter was given to the Senate Judiciary Committee only days before the confirmation hearings will begin on July 13th. Professors also predicted that the wide range of support Sotomayor has received leading up to the hearings is a testament to just how confirmable she is.

Will Military Commissions Act Gain Legitimacy?

The Senate Armed Services Committee held a hearing today on the proposed amendments to the military commissions responsible for trying the detainees at Guantanamo Bay. Three major themes were evident throughout the hearings: the desirability of trying detainees in Article III federal courts versus trying them in the proposed military commissions and where such trials took place; raising the legal standards under which the military commissions operate to match or exceed those required in international law; and, whether the proposed changes would help regain legitimacy in prosecuting the detainees.

Most of the discussion centered on the debate between trying detainees in federal courts versus military commissions. Several of the Republican Senators argued against trying any detainees in Article III federal courts because, they alleged, that would lead to the recognition of constitutional rights for detainees. But David Kris, Assistant Attorney General for the National Security Division at the Department of Justice testified that regardless of the form of trial used due process rights have already been recognized by the Supreme Court.

The hearing also focused on three major proposed changes to the military commissions: (1) the shift in the burden of proof in admitting hearsay; (2) barring statements coerced through torture or other cruel, inhuman, or degrading treatment; and, (3) defendants’ rights to choose their defense counsel. And, every panelist agreed that the military commissions should hew closely to the Uniform Code of Military Justice requirements, departing only when absolutely necessary as required by law.

All changes to the commissions ultimately address whether, moving forward, the commissions will gain legitimacy. Vice Admiral Bruce E. MacDonald, Judge Advocate General of the Navy, stated that a good test of this would be whether America would be willing to try one of its own soldiers in such a system.

Welcome to Washington, Mr. Franken

The Minnesota State Supreme Court declared Al Franken the winner in the Minnesota Senate race, and opponent Norm Coleman conceded. Franken will be seated in the Senate next week and will join the Judiciary Committee in time for the Sotomayor confirmation hearings on July 13.

We welcome Franken to the committee and hope that he finds our in-depth reports on Judge Sotomayor’s record helpful reading before the hearings commence. We also hope that his arrival in the Senate will move forward the long overdue vote on Dawn Johnsen’s nomination to head the Department of Justice’s Office of Legal Counsel.

Sotomayor Shows Precision in Areas of Civil Rights and Constitutional Protections

Today, Alliance for Justice released the last in a series of in-depth reports examining the record of Supreme Court nominee Sonia Sotomayor. During a press briefing on the report, Vanderbilt Associate Law Professor and Hispanics for a Fair Judiciary member Terry Maroney summed up Sotomayor’s style by stating, “What comes through loud and clear is that she takes a scalpel approach rather than a hammer approach resulting in absolute precision.” Speaking about the recently decided Ricci case, AFJ Legal Director Bill Yeomans clarified that “the Supreme Court decision in Ricci created a new standard that Sotomayor could not have applied previously as a circuit court judge.”

Over the last month, AFJ has released a new report each week, providing thorough analysis of key areas of Judge Sotomayor’s record. You can read all of the reports on our Supreme Court Watch page. This final report focuses on civil rights and constitutional protections, finding that similar to the rest of her record Sotomayor is “a model of judicial restraint, acutely and openly conscious of the limits imposed by her role as a judge.”

Take Action Against Torture

The United Nations has set aside June 26th as an International Day in Support of Victims of Torture to mark ratification in 1987 of the UN Convention Against Torture. Alliance for Justice has joined with many other organizations to call on Americans to observe this day by taking action against torture.

Though the United States is a party to the convention, since 9/11 our government has detained and tortured hundreds of individuals, held people in secret prisons and at Guantanamo, created a tribunal system that allows secret evidence and tortured confessions – all of which has proven damaging to our Constitution and core values at home and detrimental to our reputation and national security throughout the world.

On June 26th, please call on Congress, the White House, and the Attorney General to restore justice and hold accountable those responsible for leading our country astray by enabling torture in the name of national security.

You can call President Obama in the White House at (202) 456-1414 and Attorney General Eric Holder’s office at 202-353-1555.

You can call your members of Congress or the U.S. Capitol Switchboard at (202) 224-3121 and ask for your senators' and representative's offices.

Once connected, identify yourself as a constituent and urge these officials to take the following actions:

Close Guantanamo. President Obama has announced his intention to close the prison by January 2010. Congress should work with the President to ensure the prison is closed and the individuals held there are charged and prosecuted or repatriated.

End military commissions permanently. These kangaroo courts didn’t work under the Bush administration and cosmetic changes in the Obama administration won’t work either. The system is fatally flawed. Federal courts can provide a true measure of justice, while respecting the rule of law and upholding American values.

Reject indefinite detention. As Americans, we hold ourselves to a higher standard. Our Constitution and core values demand that we prosecute crime where evidence exists and release individuals where evidence of wrongdoing is lacking or non-existent – mere suspicion is not enough to deny anyone due process. We must hold true to our values and reject any attempt to give any president the ability to detain people indefinitely without charge.

Support an investigation of torture. As more and more evidence comes to light about the treatment and interrogation of detainees, the evidence demands a thorough investigation of the abuse, the architects of that abuse and prosecution of any crimes that were committed. Just as important, the American people deserve a full and fair accounting of what took place to ensure torture never happens in our name again.

Courageous Schoolgirl's Fight Secures Rights for Millions of Students

Savana Redding, a 13-year-old, was subjected to a strip search at her middle school to determine if she was the source of ibuprofen pills among some fellow students. With Savana traumatized and humiliated by the search -- which found no drugs -- her mother sued the school district, the Vice Principal who gave the order, and the staff who conducted the search. Today, the Supreme Court relented in its assault on the rights of students by holding the strip search of Savana Redding unconstitutional.

The Court’s decision in Safford v. Redding regarding the constitutionality of the search, joined by every justice except Clarence Thomas, recognizes not only Savana Redding’s account of her search as embarrassing, frightening and humiliating but that adolescent vulnerability intensifies the exposure’s patent intrusiveness.

However, the Court denied Savana recourse for the unconstitutional humiliation she suffered. The majority determined that the school officials had immunity from liability because the law regarding school searches was not “clearly established.” As Justices Ginsburg and Stevens point out, the Court ignored its own precedent in reaching that determination. The Court has clearly stated that a school search “crosses the constitutional boundary if it becomes ‘excessively intrusive in light of the age and sex of the student and the nature of the infraction.’” As Justice Ginsburg bluntly states, “[The official’s] treatment of [Savana] was abusive and it was not reasonable for him to believe that the law permitted it.” Justice Stevens noted that this is “a case in which clearly established law meets clearly outrageous conduct.”

While today’s decision was not an unqualified triumph for Savana Redding, she has secured a victory for schoolchildren nationwide. Her battle to vindicate her own rights has led the Supreme Court to issue a ‘clearly established’ ruling securing the constitutional right of millions of American students to be free from a humiliating, unjustified and unreasonable strip search.

Cloture for Koh, What About Johnsen?

Great news, the Harold Koh cloture vote was a success earlier today and the vote on his nomination to be legal adviser to the State Department will likely be held tomorrow. It will be refreshing for the American people to have such a wonderful legal mind at the State Department, particularly in light of recent international events. Yet, the Office of Legal Counsel in the Department of Justice is still waiting for leadership. Why isn’t Dawn Johnsen’s confirmation moving forward? With the support of both home-state senators and widely respected experts on both the left and right, and all of the important issues facing the executive branch - especially the Department of Justice - it is time for this highly qualified nominee to be confirmed.

Judge Sotomayor and Business and Consumer Law

Yesterday, Alliance for Justice released a report and hosted a telebriefing for the press on Judge Sonia Sotomayor’s business and consumer law record. Joining AFJ in the briefing were Prof. Eduardo Peñalver of Cornell University Law School and Hispanics for a Fair Judiciary, and National Consumers League Executive Director Sally Greenberg.

This report, the third in a series on Judge Sotomayor, examines her consumer and business law record, including labor and environmental law, bankruptcy, consumer protection and intellectual property among other issue areas. For those of you who are baseball fans, or simply curious about President Obama’s comments regarding Judge Sotomayor’s “saving baseball” you may find the section on labor law of interest.

The report examines the case Silverman v. Major League Baseball Player Relations Comm. Inc.; Judge Sotomayor ended the 1995 baseball strike by issuing an injunction against baseball owners - allowing the players to go back to work and the baseball season to begin.

“At the time the case was before Judge Sotomayor, the baseball strike was the longest work stoppage in professional sports history and had caused the cancellation of the 1994 World Series. Judge Sotomayor ruled against the owners because after negotiations between the players and owners became difficult, the owners tried to unilaterally change the terms of the collective bargaining agreement under which the players had been working. Judge Sotomayor held that this was an unfair labor practice and issued an injunction to protect the public interest, to maintain public confidence in the country’s labor laws, to avoid irreparable injury to the players, and to put the players and owners in the same bargaining position they were in before the strike.”

Sally Greenberg and Eduardo Peñalver also provided insights on the broader lessons that can be gleaned from Judge Sotomayor's record in this area of the law. "Judge Sotomayor wants people to have their day in court, rather than letting inconsequential technicalities prevent people from being heard," observed Greenberg. "She meets issues of first impression with caution and careful analysis. She's very much in the tradition of a careful, respectful common law judge, much like the justice she will be replacing, David Souter," Peñalver noted.

The current economic climate means issues relating to business, bankruptcy, and consumer protection are more important than ever. Judge Sotomayor has extensive experience in these areas of the law and, as the report notes, her legal writings show her ability to “recognize the impact her decision will have on the parties involved in a case, [while betraying] no preset notions or biases.” You can read the full report here.