David Kirkpatrick

May 7, 2010

Is Kagan the next SCOTUS judge?

Filed under: Politics — Tags: , , , , — David Kirkpatrick @ 12:44 pm

Yes, according to Mike Allen.

From today’s Playbook:

Look for President Obama to name his Supreme Court pick Monday, and look for it to be Solicitor General Elena Kagan, a former Harvard Law dean. The pick isn’t official, but top White House aides will be shocked if it’s otherwise. Kagan’s relative youth (50) is a huge asset for the lifetime post. And President Obama considers her to be a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions The West Wing may leak the pick to AP’s Ben Feller on the later side Sunday, then confirm it for others for morning editions. For now, aides say POTUS hasn’t decided, to their knowledge. Kagan pic and bio


August 6, 2009

Sotomayor seated

Filed under: Politics — Tags: , , , , , — David Kirkpatrick @ 2:28 pm

No surprise there. The Senate vote ended up 68-31.

Congrats to the first Puerto Rican, and Hispanic, on the Supreme Court.

June 27, 2009

The no fun league strikes again

Filed under: Business, Sports — Tags: , , , , — David Kirkpatrick @ 4:04 pm

I love pro football. Almost all my sports blogging is on pro football. But — the moniker “no fun league” for NFL is all too fitting. The league is too ready to crack down on players for public relations reasons and far too draconian in its business dealings.

Now the no fun league wants to codify a lower court precedent with a Supreme Court ruling? I doubt the court takes the case and if it does I hope the NFL gets shot down. Sadly the Roberts court — which I had some hope for — might actually take a bullshit case like this.

From the second link:

In the legal equivalent of running up the score, the NFL is going to the U.S. Supreme Court in search of a bigger victory in an antitrust tussle over team merchandise than it already won from a lower court.The Supreme Court could decide as early as Monday whether it will hear the case, which involves American Needle Inc.’s challenge to the league’s exclusive contract for selling headwear such as caps and hats with team logos on them.

American Needle of Buffalo Grove, Ill., also is urging a high court review. Football team owners hope the Supreme Court will issue a broader decision that would insulate the NFL against what they contend are costly, frivolous antitrust lawsuits.

At the heart of the matter is whether the NFL’s teams constitute 32 distinct businesses or a single entity that can act collectively without violating antitrust law.

Update 6/29/09 — The big court is going to hear the case.

From the link:

In taking a case involving the National Football League’s exclusive licensing deal for sports merchandise, the Supreme Court could go beyond caps and give leagues more leeway in areas such as team relocation, legal scholars said Monday.”A broad ruling in favor of the NFL could rewrite almost all of sports antitrust law,” said Gabe Feldman, associate law professor and director of the Sports Law Program at Tulane University in New Orleans.


June 18, 2009

Supreme Court fails DNA testing case

Filed under: et.al. — Tags: , , , , — David Kirkpatrick @ 1:50 pm

In a 5-4 decision (take a guess at the line-up on both sides of that vote), the Supreme Court ruled convicted prisoners do not have the right to DNA testing to attempt to prove their innocence. The majority cited the fact 46 states already allow for DNA testing post-conviction as reason that ability should remain with the states.

If these contentious 5-4 ruling keep happening with the same five siding for the power of statism and corporate interests over individual liberty I’m guessing the Roberts court will be seen as phenomenally regressive.

Many of the current court’s decisions run against popular sentiment and even against the stated judicial views of those deciding in the majority. There is a very real sense of situational justice at play, and that is not the role of the Supreme Court.

From the link:

Justice John Paul Stevens wrote a dissent expressing his dismay that the majority had chosen to approve of Alaska’s denial of the evidence sought by the defendant. “The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise,” Justice Stevens said.

Since 1992, 238 people in the United States, some who were sitting on death row, have been exonerated of crimes through DNA testing. In many of those cases, the DNA testing used to clear them was not available at the time of the crime.

But several aspects of the Osborne case did not make the defendant a sympathetic one, so perhaps his case was not the ideal vehicle for those hoping that the nation’s highest court would find a constitutional right to “post-conviction” DNA testing — that is, after the normal appeals have been exhausted.

Here’s Reason mag’s Radley Balko on the case:

Representing the convicted man, the Innocence Project argued that a right to access a simple test that could establish actual innocence would be covered by the Constitution’s due process clause.

I wrote about the case, District Attorney’s Office for the Third Judicial District v. Osborne, for The Daily Beast last March.

Update: via @radleybalko, head below the fold for the Innocence Project’s reaction. (more…)


May 30, 2009

Sotomayor, race and the right

Filed under: Politics — Tags: , , , , , — David Kirkpatrick @ 11:04 am

I guess attacking on race is either all those on the right who oppose Sotomayor have, or its all they know because the actual judicial record has no bearing on the argument.

The meme has become quite strong, however, and is being hammered by multiple GOPers at multiple media outlets so I guess the Republican Party is going to live, die or fade further in obscurity and irrelevance on opposing Obama’s first Supreme Court pick purely on an argument based on race.

Here’s Andrew Sullivan on the topic, first quoting Tim Goldstein:

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.

Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

Absurd would be the word. I don’t doubt she’s a liberal on these issues – guess who won the election – but I see no smoking racial gun here. Even a toy one.


May 27, 2009

Sotomayor and business

Filed under: Business, Politics — Tags: , , , — David Kirkpatrick @ 5:13 pm

To this point I’ve done no blogging on Obama’s pick for the Supreme Court. This is interesting and ought to allieve concerns for some on the right, she has a decent track record regarding business.

From the link:

Sonia Sotomayor, President Barack Obama’s choice for the Supreme Court, has compiled a balanced record on business issues that is hard to pin down, legal experts said.As with David Souter, the justice she would replace if approved by the Senate, Sotomayor’s stances as an appeals court judge are unpredictable and sometimes defy expectations of both supporters and critics, they said.

“She has not been consistently … on one side of the spectrum or the other,” said Evan Tager, a partner at the law firm Mayer Brown, who has reviewed her decisions as a judge on the 2nd U.S. Circuit Court of Appeals.

Still, some conservative critics argue that her stances in high-profile affirmative action and securities litigation cases show she’ll bend the law to favor employees and consumers over business.

Other analysts note, though, that Sotomayor has supported limiting damages in lawsuits against companies and will dismiss discrimination claims if she finds they aren’t supported by the law.

Tager said some of the positions she’s taken in damage awards cases, in particular, should hearten the business community.


May 1, 2009

Obama interrupts Gibbs in briefing room …

Filed under: Media, Politics — Tags: , , , , , — David Kirkpatrick @ 2:26 pm

… to make a statement that he spoke with Souter and confirmed the Supreme Court justice is going to retire.

Mark Knoller, CBS News White House correspondent, had a great tweet on the event:

It was Obama’s first time making a statement in the White House briefing room. “this is kind of cool,” he said.

Find Mark on Twitter at http://twitter.com/markknoller


April 30, 2009

Souter to retire from Supreme Court

Filed under: Politics — Tags: , — David Kirkpatrick @ 10:01 pm

This news comes as something of a surprise. If Obama serves two terms he may put quite a few new justices in the black robes of the big nine.

From the link:

NPR has learned that Supreme Court Justice David Souter is planning to retire at the end of the current court term.The vacancy will give President Obama his first chance to name a member of the high court and begin to shape its future direction.

At 69, Souter is nowhere near the oldest member of the court. In fact, he is in the younger half of the court’s age range, with five justices older and just three younger. So far as anyone knows, he is in good health. But he has made clear to friends for some time that he wanted to leave Washington, a city he has never liked, and return to his native New Hampshire. Now, according to reliable sources, he has decided to take the plunge and has informed the White House of his decision.

Factors in his decision no doubt include the election of President Obama, who would be more likely to appoint a successor attuned to the principles Souter has followed as a moderate-to-liberal member of the court’s more liberal bloc over the past two decades.

In addition, Souter was apparently satisfied that neither the court’s oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth Bader Ginsburg, who had cancer surgery over the winter, wanted to retire at the end of this term. Not wanting to cause a second vacancy, Souter apparently had waited to learn his colleagues’ plans before deciding his own.


January 7, 2009

Kagan to be next solicitor general

Filed under: Politics — Tags: , , , , , , — David Kirkpatrick @ 1:17 am

This from Cato-at-Liberty:

The selection of Harvard Law School Dean Elana Kagan to be the next solicitor general (and the first woman nominated for a position known as the “Tenth Justice”) is not at all surprising. 

One reason I supported Obama this past election was his stance on civil liberties. Presidencies can get derailed by any number of things — 9/11 anyone? — but I hold out very high hopes for civil liberties under an Obama administration.

There’s going to be a lot that I’ll be holding my nose over, but I see a tremendous upside if he can maintain the momentum. So far in the transition period, I’ve been pleased with his actions and appointments.

Also from the Cato link:

Two things we know about Kagan is that she is very smart – even before the Supreme Court clerkship and record of scholarship, she won a Sachs Scholarship, sometimes called a “Princeton Rhodes” – and has done a fabulous job as dean (including poaching star professors from law schools across the country).  While the White House and Attorney General will, of course, be setting the administration’s legal policy, we can expect Kagan to defend those policy positions ferociously and expertly.  Whether those efforts will coincide with a defense of the individual liberty and limited government encapsulated in the Constitution remains to be seen.


December 7, 2008

Scalia and golly waddles

Filed under: Arts, et.al., Politics — Tags: , , , , , — David Kirkpatrick @ 1:37 pm

From the Daily Dish:

Jay Wexler was amused by FCC v. Fox Television Stations, Inc, a Supreme Court case about profanity:

The oral argument in the case had many funny moments.  By far the best one was when, in the midst of a back-and-forth with Carter Phillips regarding how the words “fuck” and “shit” may or may not get their special force from being connected to sexual and excretory activity, Justice Scalia said, and I kid you not, “Don’t use golly waddles instead of the F word.”

Ladies and gentlemen, your Supreme Court. Afraid of language as it is actually used. I shudder to think about Antonin’s dirty talk.

Seriously though, this is ridiculous. This is the highest court in our land. There is no room for prudery or the need for juvenile euphemism when discussing matters that in some cases involves life and death. (Obviously this doesn’t quite meet that standard.) Frankly, it’s fucking embarrassing.


June 12, 2008

Gitmo detainees have habeas corpus rights

Filed under: Politics — Tags: , , , , — David Kirkpatrick @ 1:57 pm

The Supreme Court has knocked down another of the Bush 43 regime’s effort to rewrite the standards of US law. The ruling affords Guantanamo detainees habeas corpus relief.

From the Volokh Conspiracy link:

In this post, I want to excerpt the key passages from the majority opinion in Boumediene v. Bush. Boumediene is a remarkably long opinion — 70 pages, probably Justice Kennedy’s longest majority opinion ever. Here are the key sections:

   First, in Justice Kennedy’s majority opinion, the Court concludes that the detainees have a Constitutional right to habeas relief at Gitmo. Here’s the holding stated in the majority opinion:

Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court.


February 7, 2008

Department of Justice uber alles?

Filed under: Politics — Tags: , , , — David Kirkpatrick @ 7:11 pm

Attorney General Michael Mukasey provided some amazing legal machinations before Congress today. He essentially declared that the Department of Justice determines US law.

From the linked TPM Muckraker post:

Mukasey wanted to say it more carefully. “I think what I said was that we could not investigate or prosecute somebody for acting in reliance on a Justice Department opinion.”

So a Justice opinion, even if wrong and in direct violation of law, provides immunity from prosecution by the DoJ. Just wow, and more than a bit tautological.

This is damn close to saying the DoJ is the final arbiter of US law. I think the Supreme Court might have something to say on the subject.

(For more information on TPM Muckraker and their now special relationship with the DoJ, check out this post and extensive comments.)