Russ Feingold For The Supreme Court??

With another one, possibly two, Supreme Court Justices within an arms reach of retirement, it’s never too early to start thinking of potential Supreme Court nominees. But here’s one out of left, no pun intended, field. Senator Russ Feingold. Matt Rothschild makes an excellent argument in favor of a Feingold nomination:

Feingold has the intellectual heft for the job, as he was a Rhodes Scholar and then graduated from Harvard Law School.

He is one of the staunchest defenders of civil liberties in the country, and he chairs the Senate Judiciary Subcommittee on the Constitution. Not afraid to stand alone, he was the sole Senator to vote against the USA Patriot Act. He also has led the fight against illegal domestic spying, and he has spoken out strongly against the shredding of due process in the Military Commissions Act.

And perhaps Feingold’s best qualification for a seat on the Supreme Court; the dude has balls. If you ever need a member of  Congress to give you a straight answer or tell it like it is, Feingold’s your man. For all of his hemming and hawing, I think Obama owes progressives a Feingold nomination to ensure a firebrand progressive has a seat on the court for many years to come.

It’s also worth noting that the Governor of Wisconsin, the state Feingold represents in the Senate, is held by democrat Jim Doyle. This is important because the major drawback with elevating any democratic politician to a higher office is the potential that he or she would be replaced by a republican. (Ask voters in Arizona how that one turned out). Thus, if Feingold were nominated he would theoretically be replaced by another democrat.

I’m particularly interested in Feingold, because his selection would represent a return to selecting non judicary figures for Supreme Court vacanicies. A little known fact, it was once very common to select non judges to the Supreme Court as a means to balance the types of opinions on the court. Some of our most famous Justices were not judges at the time of their nomination. Think Justice Hugo Black.

Does the Ricci Ruiling Harm Business Interests?

Ilya over at Volokh Conspiracy has a good post on a subject I touched on earlier. Namely, that the Ricci’s ruiling kind of screws businesses and minorities in one fell swoop:

The Court’s ruling makes life more difficult for employers trapped between the Scylla of Title VII disparate impact liability and the Charybdis of “disparate treatment” suits by white employees (“disparate treatment” suits are cases alleging traditional intentional racial discrimination). If a business adopts a race-neutral hiring or promotion standard that results in few or no minority hires or promotions, it is potentially vulnerable to a disparate impact lawsuit. As several Supreme Court cases make clear, that can happen even if the business was not intentionally trying to disadvantage minorities. But if the business adopts race-conscious measures to try to shield itself from liability (e.g. – by practicing affirmative action, adopting a standard that is more favorable to minority applicants, and the like), it opens itself up to “disparate treatment” lawsuits by whites, such as one the filed by the New Haven firefighters in Ricci.

As I mentioned earlier, the irony in the Ricci ruling  is that it more or less makes it illegal to either prevent discrimination or remedy it, in all but a handful of cases. The major failing of the court comes not only from its incorrect decision but also from the vaguness in its decision. Justice Kennedy in the majority opinion states that the disparate impact clause of  Title VII, can only be invoked in a narrow set of circumstances where there is over whelming evidence that a  particularly minority group disporportionately experienced a negative outcome a. But considering that ZERO African American’s qualified for promotion and the stated evidence that a fair amount of White candidates recieved advance tips and assistance, its hard to imagine any case meeting this vague standard.

It’s Not Discrimination to Fight Discrimination: The Supreme Court on Ricci

I hope to write a long detailed post about the recent Supreme Court ruling on Ricci v DiStefano. If I don’t someone give me a kick in the ass to remind me.

But in the mean time, you’ll have to settle for this brief point.

One of the main arguments against the city of New Haven, is that they threw out the test because they feared getting sued. That however misses two important points.

First, the City of New Haven , IE the Mayor, didn’t throw out the tests, the Civil Service Board (CSB) threw out the test.*

Second, and more importantly, CSB didn’t throw out the test because they feared getting sued. They threw out the test after extensive analysis lead them to believe they had violated Title VII and would lose an impending lawsuit. But this process is no different than the normal process would’ve been had overt discrimination existed.

The real irony, probably intentional, is that conservatives on the Supreme Court have indirectly ruled that it’s essentially illegal to remedy instances of discrimination. (Let me know if anyone needs me to clarify this last point)

The CSB board voted 2-2 in favor of certifing/not certifing the test. A tie results in non certification*

Why Sotomayor Was A Bad Choice

Sonia Sotomayor is intelligent.

She is qualified.

And if I were Senator in the United States Senate, I would vote in favor of her confirmation.

But I completely disagree with President Obama’s decision to nominate her for the Supreme Court.

There’s been a bit of controversy over what qualifies someone to be on the Supreme Court. Should a Justice be empathetic to those affected by the law? Does one’s life experience impact the way they perceive legal issues? Is the diversification of the court an important goal?

On all three of these issues, I side with majority of liberals who emphatically say yes . Diversity is important, personal experience is relevant and empathy is fundamental to the interpretation of law. But all of this misses the most fundamental point. The most important qualification in selecting a Supreme Court justice is a sharp intellectual acumen.

Don’t get me wrong. I think Sotomayor is probably a very smart woman. Easily smarter than I am. But we’re not judging Sotomayor relative to a lay person. We’re judging her relative to the best of the best in all of the legal kingdom. This includes Academia, Government, and the judiciary. Has anyone, supporter or critic, ever made the argument that Sotomayor is one of the leading legal minds in her field? Has anyone ever lauded her for her amazing intellect? The answer to both these questions is a no. In fact, if you had a five minute conversation about all of the things that make Sonia Sotomayor a good judge, the words sharp legal mind would never come up once. And this is where my problem with her begins.

Sotomayor’s leading intellectual accomplishment thus far, seems to have been putting together a impressive resume. Congratulations, you were smart in college thirty years ago. What did you do with that intellect in the real world? Did you fight for bold ideas like Pamela Karlan? Did you make yourself into a renowned and respected legal mind like Elena Kagan? As a judge were you an outspoken defender of  progressive rights like Diane Wood? The answer to all of these questions is a resounding no. The sad truth is that despite all the trail blazing Sotomayor has done in her personal life, she’s done very little trail blazing in the legal field.

At a certain point a disconnect forms between an impressive resume and an impressive career. Some people have one, but not the other. And every sign I’ve seen thus far points to Sotomayor having the former but not the later.

Does this mean Sotomayor will be a poor Supreme Court Justice? Not at all. Throughout her career she’s proven herself to be a very competent judge with a thorough underunderstanding of the law. But lets not kid ourselves here. Supreme Court appointees have life time terms. and there’s only nine of them. We never know when the next one will retire, or god forbid unexpectedly die. That is why its of the utmost importance to make every pick count. To aim for the fences with every swing, as if this person will be your only chance to shape the makeup of the most important court in the world. Because the truth is, it might.

Essential Sotomayor: Everything You Wanted To Know About Sonia Sotomayor

As expected, President Obama officially nominated Federal Appeals court Judge Sonia Sotomayor as the next Supreme Court Justice.

You can read a non biased exposition of her cases here.

It looks like Salon read my blog entry in which I made a political case for Sotomayor.

John Dickerson did too. But he tries to one up me with a slightly different take

If you’re unsure of how to pronounce Sotomayor Slate has you covered.

A Daily-Kos diariest who’s argued before her isn’t too impressed either. (But say’s she’ll be a reliable center-left judge)

A quick point-counterpoint rebuttal of conservative arguments against Sotomayor.

One thing conservatives won’t attack Sotomayor on. Her role in ending the 1995 baseball strike.

Empathy = Weak Argument against her.

Various lawyers who have appeared before her give their feelings.

Supreme Court Opposition: The Ultimate Political Pyramid Scheme

President Obama hasn’t selected a Supreme Court nominee yet, but conservatives already know that they hate them. At least according to an article in today’s New York Times. Of course, this isn’t anything that hasn’t been said before. But what strikes me as particularly galling is how open and unashamed Republicans are about using their false opposition to Obama’s eventual pick to fill their campaign coffers.

Let me be clear, that this is a criticism of these particular organizations and not conservatives as a whole. But how much more unethical can you get, than preying on the fears of your supporters with horribly misleading, or down right false, propaganda whose sole purpose is bleeding them dry of their hard earned money. All of this during a recession in which many families are living paycheck to paycheck and struggling to get by.

Money makes the world go round. I get that. And organizations have to use political situations to raise money. I get that too. But when you’re creating a political zeitgeist which you have no intention of offering legitimate opposition to, which this movement has flat out stated, then that strikes me as usury. Tricking people into paying for a service you have no intention of providing. The ultimate political pyramid scheme.

PS. While this post isn’t about conservatives as a whole, I will say that their “opposition” strategy is pretty lame. Oh noes! A gay judge supports rights for homosexuals! A woman judge is pro choice! The minority judge supports affirmative action! HAS THE WORLD GONE CRAZY?!?!?