A Question For Democratic Senate Judiciary Committee Members to Ask Sri Srinivasan If Obama Nominates Him to Fill Scalia’s Seat
In private practice, prior to his appointment to the appeals court, Srinivasan successfully represented former Enron Corp CEO Jeff Skilling in a Supreme Court case. The Supreme Court narrowed the reach of the so-called honest services fraud law, invalidating one theory used by prosecutors for Skilling’s conspiracy conviction and ordering further appeals court review. Despite the high court ruling, Skilling’s conviction was later upheld by an appeals court.
Srinivasan also represented Exxon Mobil Corp in a lawsuit alleging human rights abuses in Indonesia, and mining giant Rio Tinto in a similar case about its activities in Papua New Guinea. Both cases concerned in part whether a law called the Alien Tort Statute allows such cases to be heard in U.S. courts. The Exxon case is still ongoing. The Rio Tinto lawsuit was dismissed.
— Judge who could replace Scalia worked on controversial cases for business, Jonathan Hurley, Reuters, today
There are, of course, some questions about the Exxon Mobil cases that he should and probably will be asked, by Democratic members of the Judiciary Committee if Obama does nominate him, as the betting folks in Washington expect.
Far less controversial, in my opinion, is his representation of Jeffrey Skilling. The federal honest-services fraud statute, which the Court held, at Srinivasan’s urging as a partner in the Supreme Court Practice group at the Washington, DC office of mega-legal-powerhouse Los Angeles-based O’Melveny & Myers, was too vague to comport with constitutional dictates of due process of law.
But what is controversial, in my opinion, is how it happened that this particular criminal defendant managed to garner the attention and support of at least four justices (the minimum needed for the court to grant a petition to hear a case), in a case that challenged a criminal statute as unconstitutionally vague.
The Supreme Court has a preset number of cases it will hear each year (a fact that itself is ridiculous and inappropriate). I believe the number is about 70. Almost all of the cases that fill those spots—court term after court term after court term—are heard at the behest of lawyers who fall into one of three categories: attorneys representing law enforcement, usually the state’s attorney asking the Court to reverse a lower federal appellate court’s grant of a petition for writ of habeas corpus on behalf of a convicted state-court criminal defendant, but also “cert.” petitions asking the Court to reverse a monetary judgment against a law enforcement officer in a civil rights lawsuit; a lawyer from one of the rightwing self-styled legal foundations around the country serving as pro bono counsel in a culture-wars and Koch-brothers-wish-list cases (think: affirmative action, attempts to nullify the Voting Rights Act, attempts (currently, at the Court) to profoundly restructure legislative reapportionment; you get the picture); and a member of so-called Supreme Court specialist bar, whose actual specialty is putting the lawyer’s name, law firm and Washington, DC. Office address on the cert. petition, for a fee that only corporations, lobbying groups and individuals of the Jeffrey Skilling personal-wealth set, have access to.
Pretty much no one else need apply, although roughly 9,000 others each year do. Many of them to the tune of about $7,000, the de facto application fee, the typical cost for the 40+ copies of the cert. petition and appendices, printed by one of three printing companies that exist because they print these things with the (very) nonstandard sizing and binding-into-a-cute-little-booklet precision that the Court’s rules mandate. A high cost for the privilege in participating in a charade. A steep admission fee, deliberately so; there is no conceivable justification for it, given today’s modern technology for printing, electronically transmitting, and e-reading.
I mean, y’know, no legitimate justification for it.
In recent years, the Court has, in my opinion appropriately, agreed to hear a number of cases that challenge on vagueness grounds the constitutionality of criminal statutes. But they are always federal statutes rather than state ones, and almost always are heard at the behest of someone whose cause correlates with a Republican interest, of the culture-wars variety or of the corporate-folks variety.
Vagueness challenges to the Armed Career Criminal Act of 1984 (ACCA)is a prime example. Anthony Kennedy, in particular, has taken an interest in the issue of whether the statute is unconstitutionality, and wrote a particularly moving due process opinion a while back in an ACCA case, on the vagueness issue. But he has choosen his ACCA-vagueness cases carefully. Wikipedia summarizes the Act as providing that:
If a felon has been convicted more than twice of a “violent felony” or a “serious” drug crime, the Act provides a minimum sentence of fifteen years, instead of the ten-year maximum prescribed under the Gun Control Act. The Act provides for a maximum sentence of life imprisonment.
To my knowledge, until very recently each of the cases that the Court has agreed to hear on interpretation of this statute in the last decade or so concerning the vagueness issue and interpreting the statute’s breadth, was—surprise!—not a drug case but a gun case. As in, is it a violent crime if you were just carrying a gun but you didn’t use it in the burglary? That kind of thing.
Access to court is a critical issue that starkly pits the elites against the hoi polloi, quite dramatically at the Supreme Court, in two meaningful respects: Cases that argue jurisdictional access and quasi-jurisdictional access are, to a baldly improper extent under the doctrine of separation of powers between the federal judicial and legislative branches, mainly concern Supreme Court-fabricated “doctrines” and Supreme Court interpretations of a habeas corpus statute that amount to a rewriting of the statute. But regarding jurisdictional access and quasi-jurisdictional access in civil lawsuits, the only cert. petitioners who have access to actual consideration of a cert. petition that challenges those doctrines as interpreted by the lower federal courts, are those whose petitions bear the names of the likes of John Roberts when he was practicing law, and Sri Srinivasan before he became a federal appeals court judge.
(These doctrines should be challenged facially, not merely in incremental as-applied contexts, in collateral lawsuits filed in federal district court, which is what a friend of mine is doing right now. But she’s not represented by prestigious counsel or, pro bono, by some progressive version of a legal-think-tank/law-firm. And she will be represented by a member of the Supreme Court specialists-in-getting-an-actual-justice-to-read-your-cert.-petition cadre. Nor will she be paying the $7,000 to a printing firm for cert. petitions. So her lawsuit doesn’t count. Literally. It. Doesn’t. Count.)
In a post here yesterday about the Scalia-seat vacancy that has a record-long title, even for a post by me, the queen of long blog-post titles, I wrote:
Had Justice Scalia’s death occurred a few weeks before the South Carolina primary rather than eight days before, these opposing views might have been put to the test. Obama might by now have nominated a Black or Asian-immigrant or female moderate whose name appeared first on his long shortlist and then on his short shortlist by dint of the algorithms that produce such shortlists. Clinton would shout her support from the hilltops of the Blue Ridge Mountains, Sanders would criticize her for shouting, and Clinton would shout: sexism.
But Sanders also would criticize the choice, further securing that special place in hell. Or maybe not securing it, since this is 2016, not 1996 and not even 2006.
Actually, although the shortlist list-makers mostly haven’t noticed, this is the age of Ferguson, of Eric Garner, of Sandra Bland, of Walter Scott, etc., etc. It is the age of (as Ferguson is a poster town for) extraordinarily inappropriate bail requirements. It is the age of the funding of local government via exorbitant traffic fines, petty (trumped-up) ordinance-violation fines, metastasizing court fees, and prison fees. It is the age of extremely belated (but extremely welcome nonetheless) broad public recognition that prosecutor misconduct is commonplace (and is tacitly invited by opinions issued by the Supreme Court in a variety of cases).
And it would be deeply offensive for Obama, or for that matter a second President Clinton, to nominate another Elena Kagan—or anyone who has no background in representing non-white-collar criminal defendants, especially in state courts or in federal habeas corpus cases that challenge state-court convictions, or related types of civil rights litigation.
It’s now permissible to mention the interests of the people whose lives are most profoundly and most directly affected by Supreme Court appointments. Really.
Really.
My post goes on to recommend to Bernie Sanders, who is my candidate but probably does not read Angry Bear (but what the hell)—although he should!—three names for a shortlist for consideration for nomination to the Court, during the primary campaign. If Obama believes that only this man has a reasonable chance for Senate confirmation, then, fine, he should nominate him. There most probably will be at least one more opening on the Court in the next four years, and President Sanders, certainly, or President Clinton, maybe, will limit their consideration of candidates to those with a background in criminal law, including criminal law that affects ordinary folk.
But this issue illustrates exactly the type of thing that Sanders has in mind when he talks of using the bully pulpit to educate and motivate people can’t afford lobbyists (and can’t afford the current equivalent of John Roberts or Sri Srinivasan when they were practicing law) to make their voices heard and their policy and nominee choices known.
This post’s (relatively short, for me) title is “A Question For Democratic Senate Judiciary Committee Members to Ask Sri Srinivasan If Obama Nominates Him to Fill Scalia’s Seat.” The question, or questions concern genuine, actual, and meaningful access to Supreme Court review by those who, unlike Jeffrey Skilling, could not have afforded Srinivasan’s fees.
As regular readers of my posts here at AB—yes; both of you!—might have noticed, I usually end my posts with some funny or clever line or two. (Okay, what I think is a funny or clever line or two; I try.) Not this time, though. There really is little of more importance, in my opinion, than the issue of meaningful, or literal, access to the courts, including—and in the criminal and criminal-related areas and in areas such guardianships-conservatorships, parental visitation (personal: yes, Sean, I’m thinking of you), and the like, meaningful appeal and actual, meaningful, and in the case of guardianships and such, immediate access to collateral federal-court review of the constitutionality of what are truly bizarre and brazenly unconstitutional probate court and family court orders that violate express state statute.
This stuff is very commonplace, folks. But only Exxon Mobil, Sprint Communications, and other parties like them who are represented by lawyers of the sort who populate the Supreme Court’s 70-case-per-year docket are permitted to challenge these jurisdictional and quasi-jurisdictional dockets.
So: No attempt at something funny or clever this time. Just an expression of hope that this post gains some actual attention.
And this: There is no branch of government, federal or state, no public institution, no public entity that is more permeated with elitism than this country’s courts. None.
None.
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ADDENDUM: Reader Urban Legend and I just had this exchange in the Comments thread:
Urban Legend
February 15, 2016 3:20 pm
It would be nice to see someone from other than Harvard or Yale (or other Ivy or Eastern “Little Ivies”) for a change. Like a state university such as Cal, Michigan, Wisconsin, Texas or Ohio State. If they are going to re-capture some connection to ordinary Americans outside the coastal enclaves, Democrats need to shed the image of intellectual elitism developed over the last 30 years (with plenty of Rovian assistance from the Republicans wanting voters to focus on the culture wars rather than their economic distress, but with Democratic Party neglect as well). Obama unfortunately played right into that imagery with his Ivy League-heavy cabinet and top judicial appointments.
Me
February 15, 2016 3:41 pm
Urban, my first choice, as I said in my post yesterday, is Jeffrey Fisher, whose JD is from the University of Michigan and who originally is from Kansas City.
Fisher also is not and has never been a judge—a big plus, in my opinion. He is the head of Stanford University Law School’s Supreme Court Litigation Clinic, and when he was in private practice with a law firm in Seattle served as voluntary, pro bono Supreme Court counsel to ordinary-folk folks convicted of crimes in state and in federal court, and won major changes in the law. With the help of Scalia, no less, who in some of the cases provided the fifth vote; Stephen Breyer was among the dissenters.
And here’s something very interesting, for sure: Fisher served as a law clerk to Justice Stevens, and then of course was offered huge bucks (former Supreme Court clerks get large bonuses to sign with mega law firms) to join the Washington, DC mega-firm or the Washington office of a mega-firm based elsewhere. But he chose instead to leave Washington in favor of, well, Washington. The state. Straight out of his clerkship, he joined a large prestigious Seattle-based firm. In Seattle.
He represented the usual corporate-law clients. But he also decided to represent people who could not quite* pay his fee: people convicted of crimes in state courts, who had valid challenges to the constitutionality of some aspect that lead to their conviction. In the Supreme Court. And he won. And won.
He’s white and male, though … so … well … you know.
The chance that Clinton would nominate him is close to zero; Clinton is nothing if not all about demographics. The chance that Sanders would nominate him is, I’m betting, good.
___
*Word typo-corrected, from “quote”. ” Sentence was supposed to say “But he also decided to represent people who could not quite* pay his fee: people convicted of crimes in state courts, who had valid challenges to the constitutionality of some aspect that lead to their conviction.” 2/17 at 10:11 a.m.
It would be nice to see someone from other than Harvard or Yale (or other Ivy or Eastern “Little Ivies”) for a change. Like a state university such as Cal, Michigan, Wisconsin, Texas or Ohio State. If they are going to re-capture some connection to ordinary Americans outside the coastal enclaves, Democrats need to shed the image of intellectual elitism developed over the last 30 years (with plenty of Rovian assistance from the Republicans wanting voters to focus on the culture wars rather than their economic distress, but with Democratic Party neglect as well). Obama unfortunately played right into that imagery with his Ivy League-heavy cabinet and top judicial appointments.
Urban, my first choice, as I said in my post yesterday, is Jeffrey Fisher, whose JD is from the University of Michigan and who originally is from Kansas City.
Man oh man does this need wider circulation. I’m pretty informed and under no illusions about how skewed things are, but I had no idea the deck was so artfully stacked.
Ohhhhh, yeah, Van Buren. It is. Thanks for your comment. And if you are an active social media person (which I am not), please forward the link.
Again, thanks.
Is it ridiculous that there is a limit on the number of cases to be heard, or do you think it is too high or too low?
Meanwhile three of the seven Mass SJC justices have resigned in the last two weeks.
Very nice post Bev.
And the magic Google says: http://www.fjc.gov/history/caseload.nsf/page/caseloads_Sup_Ct_Methods_of_Disposition_2
The caseload of SCOTUS has dropped off quite a bit in the last 20 years.
Srivanisen has all the potential to be the Obama version of Earl Warren or David Souter – a judge thought to be moderate in the president’s direction who turns out very different. At 49 he could conceivably be on the court for 30 years.
It’s unlikely the GOP will confirm anyone but if Obama wants to test the strategy of picking a moderate who has faced confirmation previously I suggest he go with someone quite a bit older. That has positives in a couple of directions.
First if the choice turns out to be moderate in a more conservative direction we’re only stuck with him/her for a few years. Second, a more elderly judge fits the strategy of making the GOP look like even bigger horse’s asses.
Given the ages on the court the next president is likely to get two picks in the next four years and almost certainly three within the next eight (and four if this selection is a bit more elderly).
If Obama can’t have a solid Liberal (which he can’t) then there’s no reason to take a chance on a relatively young moderate who has the potential to be center right.
As for background, I second the notion of someone from outside the Ivy League and would love to see someone with a background similar to Sandra Day O’Connor – someone with experience as a legislator. That background and knowledge would work as a counter to the Scalia argument (which Roberts and Alito have at times endorsed) of ignoring legislative intent. There is a wealth of information embodied in legislative histories and justices that ignore such background in favor of “exactly as written” do a great disservice to the legislative process.
Good grace, Mark. Why would you fall for the canard that someone with legislative experience is a good fit for the Supreme Court. Earl Warren was anomaly. Sandra Day O’Connor was quite not.
O’Connor authored this opinion, one of the most appalling and illogical ever: https://en.wikipedia.org/wiki/Lockyer_v._Andrade.
She also played an enormous role in effectively killing the right to effective assistance of counsel. I still remember so well, at the time of the announcement of O’Connor’s retirement, watching an interview with Pam Karlan (https://en.wikipedia.org/wiki/Pamela_S._Karlan), pointed out that O’Connor was the author of the key opinion that de facto ended the right to effective assistance of counsel in any meaningful sense, and the look on Karlan’s face as she said that for the next 20 years O’Connor never saw an effective-assistance claim that she thought should survive the O’Connell-established bar for it. A FULL 20 YEARS.
Here’s a link to a 2015 law review article by 9th Circuit Court of Appeals Judge Stephen Reinhardt titled “The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequence.”:
http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1217&context=mlr&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dsandra%2520day%2520o%2527connor%2520pamela%2520karlan%2520ineffective%2520assistance%2520of%2520counsel%26source%3Dweb%26cd%3D7%26ved%3D0ahUKEwja94uC-PrKAhUJTSYKHYe6Bd0QFghGMAY%26url%3Dhttp%253A%252F%252Frepository.law.umich.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1217%2526context%253Dmlr%26usg%3DAFQjCNHhWzvxV5EWPq2K9kIl-8lHnx9m_w%26sig2%3DQ-ASunAa-auDP8JJSTTKcw#search=%22sandra%20day%20oconnor%20pamela%20karlan%20ineffective%20assistance%20counsel%22
“Qualified immunity is a Supreme Court-invented doctrine that bars monetary lawsuits against virtually all law enforcement people—cops, prison administrators, etc., etc. O’Connor played a huge role in it.
As she did in killing the right to federal-court habeas corpus relief from a state-court criminal conviction, no matter how bald the constitutional violation. And here’s something that Bill doesn’t know: He and I have discussed many times in comments exchanges here at AB about the appalling 1996 statute that removed federal-court habeas corpus jurisdiction in virtually all state-court criminal convictions—especially the Supreme Court’s rewriting of that statute to broaden it so that it truly ends the right to habeas relief from a state-court conviction—even though the right to habeas corpus relief is actually expressly created in Article I of the Constitution, which expressly prohibits Congress from enacting the type of statute that . But the blueprint for that statute was a Supreme Court opinion authored by O’Connor. The statute is titled, Madison Avenue-like, the Antiterrorism and Effective Death Penalty Act, but that was just to sell it. The habeas corpus parts apply to all state-court convictions.
Btw, Mark, I still haven’t finished reading the book. I’ve been working pretty intensely on a pro bono project, and will be for another week. It’s been taking most of my time. But it’s an important book, I think.
Well, yes, J.Goodwin. I assume the “too high” is a joke, and I get your point. And for a court whose justices—Scalia would say this regularly—that claims to not be a “court of error”, that is, it doesn’t correct mere erroneous rulings by the lower courts, and instead only makes law (seriously; that’s what he would say), he and his buddies would pretty regularly reverse mere error of lower courts in habeas petition cases and civil-immunity-from-lawsuits-against-law-enforcement-folks cases (i.e., the doctrine of qualified immunity, a doctrine created out of nowhere by the Supreme Court, which then of course kept expanding it and has been always available to reverse monetary judgments in such cases, whenever asked to do so).
But there is rarely any room left at the inn for anyone else.
PS: Thanks, Mark. Skipped right past your first sentence the first time I read your comment.
Bev,
I’ll defer to your knowledge of O’Connor’s opinions. I used her primarily as an example.
Maybe I should have used John Marshall or Hugo Black. I do think there is a value to having someone with experience outside the law sit on the court. I’m not versed enough in decisions to demonstrate that in cases of interpretation of statutes that these folks bring some useful knowledge of the legislative process (my interest is piqued enough to do some research) but my guess is that it can help.
The Scalia argument that we should only look at the text of the law in isolation of the legislative history has been picked up by Roberts and Alito. In addition to ignoring intent that sort of thinking can be a prescription for making bad legislation.
If legislators operate under the assumption that every possible alternative must be included in legislative text in order for courts to divine the intent behind the legislation then what we end up with are overwritten statutes that lose the forest for the trees.
I’m not suggesting that legislators shouldn’t strive for clarity but judges also need to apply context.
I also think that in terms of diversity it’s good to have justices with a broad range of experiences both inside and outside the law (the days when a non-lawyer could be effective on the court are long gone). Lately it seems that most picks are coming out of lower Federal courts. Kagan is an exception but her background is still pretty insular (I’m not arguing that she wasn’t a good pick or hasn’t been a good judge).
The other trend lately has been to pick younger justices. This is at least partly the president wanting to leave a judicial legacy which is at least somewhat of a political calculation. Picking someone in their mid-forties to early fifties can conceivably put someone on the court for forty years. That is simply too long, especially for a position with the insularity of the Supreme Court.
The lifetime appointment clause makes sense in terms of independence of the judiciary but perhaps there ought to be an age qualification. We say the president must be 35 maybe a Supreme Court judge ought to be at least 55. (We are neither going to end lifetime appointments nor establish an age limit since at this point in time with our current polarity getting any sort of an amendment through is well nigh impossible).
To be clear, I’m not disagreeing with anything you said in your post or the response about O’Connor. I’m offering up some admittedly partially formed thoughts based on my own reading, observations, and experience. The feedback I get is a good way to learn.
(ps. thanks again for taking on the book. I’m glad you’re finding it important. hopefully when time permits you’ll find it worth a post)
Mark:
Agreed on the age of Justices. A justice should not be able to shape the nation with their legacy of decisions over a lifetime which is precisely what is happening. What Roberts and associated knuckleheads are doing is precisely in this direction.
Agreed on the literal interpretation of the Constitution.
Don’t pick on John Marshall my ancestor.
Hope all is well.
Bev, what do you think the odds are that anyone nominated will get even a judiciary committee hearing much less an actual senate vote?
Recess appointment? ???
White House Says Obama Recess Appointment of Scalia Supreme Court Replacement Unlikely
By Elliot Hannon
http://www.slate.com/blogs/the_slatest/2016/02/15/obama_recess_appointment_of_scalia_supreme_court_replacement_unlikely.html
I am reminded of Lincoln’s House Divided speech:
All those GOP “loose declamation in favor of “Squatter Sovereignty,” and “Sacred right of self-government.”
To disenfranchise the serving president.
GOP equals billionaire lackey, along with the DNC.
At the core of this pick is the system of a republic, that idea formed in an era of ignorance and fear of the mob that created the Senate and held it up as the last wall against tyranny by the masses. The nomination process was a compromise based on two issues, curtailing Presidential power and giving small states more power relative to large states in picking jurists. By accepting the ultimate power of the Senate to arbitrarily use the advise and consent power, we accept the notion that a small group people in very unpopulated states have the right, the duty and the power to completely derail the results of a general election or the majority. One can say that this might be good policy if the majority held dangerous or wildly reactionary views such as wanting all Muslims jailed or suspending habeas corpus but is that really at stake here? In fact, these views are held by the majority of right wing voters in a minority of states today. Today, the majority holds the saner, pragmatic and rational positions yet the small states now can keep them from being supported by the law and courts if they win in 2016. Who is to say that if a Trump wins in November we will not be forced down a road to fascism due to our inane and archaic notion of states rights?
Beverly,
Slightly off topic but I wonder if you heard Ted Cruz’s slanderous and incendiary Meet the Press remark about liberals alleged plans to sandblast crosses and stars of David off of veterans tombstones? It is a twisted allusion to the 2010 SCOTUS case, Salazar v. Buono, about the sale of a piece of federal land with a war memorial cross on it. Cruz was one of the petitioners in the case and Obama’s Solicitor General. Elena Kagan was counsel for the petitioners — that is seeking to PRESERVE the war memorial cross.
http://econospeak.blogspot.ca/2016/02/ted-cruzs-mendacity-and-calumny-is.html
By pre-announcing that they will not approve, anybody that Obama nominates, the Republicans have ensured that he can nominate somebody for strictly political reasons, and not worry about what that person might do on the bench, or indeed whether they could be approved. He has already framed the debate on whether he should nominate somebody as “I’m doing MY job, what’s keeping you from doing yours?” which plays into people’s dissatisfaction with Congress.
Interesting and rather shocking post (well, maybe not surprising, just shocking). But it leaves me with a question: what is the proposed question? There are actually several implied in your discussion, all to do with access.
How should the question be asked to hope for a useful or enlightening answer? That is not at all obvious to this layman.
Rumor is o will nominate lynch, an abysmal choice that Hillary would cheer… And if sanders is elected, lame duck reps would let through on orders from their contributing bank.
I shared this on my facebook page. I think it was Dahlia Lithwick at Slate (though it might have been Emily Bazelon) who wrote about how the Court was narrowing standing, so almost nobody could bring an appeal. At various times both ladies mentioned most of the things you brought up. I wish there was some way to make more people aware of this. I have no idea what could be done to redress the situation, though. Charlie Pierce, who blogs over at Esquire, has suggested that President Obama is all out of fvcks to give, so is more often doing what he sees as the right thing regardless of how the Republicans whine. Maybe he’ll do a mitzvah again in this instance.
The idea of “standing” is somewhat ridiculous. The most egregious case is DC Home Rule. The Constitution says that Congress shall have Power to “exercise exclusive Legislation in all Cases whatsoever” over the District of Columbia. But Congress unconstitutionally abdicated that power and gave it to the City Council and Mayor.
But no-one can possibly have standing to challenge it!
Procopius, there’s never been any indication—none whatsoever—that Obama thinks that appointing someone with a background in non-white-collar criminal defense law, or in civil rights law of the sort I’m talking about, would be the right thing to do. Thus, Sotomayer, who has turned out to be mainly excellent on these issues but who was nominated because she’s Hispanic, and, well, Kagan—both nominated when the Democrats held firm control of the Senate.
Granted, there was so much else of huge importance going on at the time: the ACA, Dodd-Frank. And he probably would have taken the easy-confirmation route no matter what his personal preference was. But there’s never been any indication at all that his personal preference would have been to appoint someone with a criminal-defense or a civil-rights-violation-against-a-single-individual background. None.
Meanwhile, speaking of Emily Bazelon, who now writes for the NYT Magazine, she has an article there that actually does include a strong argument for nomination of someone with a criminal-defense or a civil-rights-violation-against-a-single-individual background. When I read it yesterday, I said to myself, “Wow. It’s finally happening.” The article is at http://www.nytimes.com/2016/02/15/magazine/how-to-bring-the-supreme-court-back-down-to-earth.html?rref=collection%2Fsectioncollection%2Fmagazine&action=click&contentCollection=magazine®ion=stream&module=stream_unit&version=latest&contentPlacement=3&pgtype=sectionfront&_r=0.
PS: Procopius, thanks for sharing it on Facebook.
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