Kurt X. Metzmeier's blog
Today is the the last day of the 2009-09 Supreme Court term and a decision is expected in the New Haven firefighters case (Ricci v. DeStephano), a case appealed from Judge Sotomayor's Second Circuit and one that may figure in her nomination hearings. (Two other cases are still unresolved).
It is also the last day for Justice David Souter, who is retiring to his quiet home in New Hampshire. Expect to seea more comprohensive and analyticl surveys of his time on the court in coming months.
SCOTUS Blog <http://www.scotusblog.com/wp/> will be live blogging the session, starting at 10:00 a.m.
The opinion of Kentucky Attorney General Jack Conway on whether s. 226 of the Kentucky Constitution prohibits video "slot machines" operated by the Kentucky Lottery Commision was released today. The opinion (co-signed by my law school classmate Jennifer Black Hans, class of '95) is very well-reasoned and is a text-book perfect model for analyzing both a section of the state constitution (the 1891 section 226) and an amendment to the document (current 226(1) adopted in 1992).
The opinion concludes that such VLT's are not prohibited by the constitution, a result that is not surprising to anyone who has actually read the text of the prohibition and understands the full sweep of Kentucky history. The proper context of the prohibition against lotteries is not as a reaction against gambling, but more as a reaction to special privileges. As such, it should be classed with sections 59 and 60, which ban special and local legislation, because the right to run a lottery was one of the many privileges the pre-1891 legislature doled out to charities and other institutions. (As a librarian, I'm ashamed to admit that the notoriously corrupt lotteries operated on behalf of libraries probably had a lot to to with the adoption of section 226*). The delegates to the 1890-91 constitutional convention pointedly refused to bar horse racing (and probably occupied their nights in Frankfort saloons playing cards, perhaps the game of black-jack popularized by Kentucky's favorite son Henry Clay).
*See esp., Lotteries and Libraries: A History of the Louisville Free Public Library (1944) for a discussion of the trouble engendered by the 1871 library lottery charter. Such charters granted broad powers to trustees who often ended up with much of the proceeds.
The oral arguments in the U.S. Senate election dispute between Norm Coleman and Al Franken, justice Alan Page presiding, is now available on the Minnesota Supreme Court website.
If you like election law, they are fascinating:
Minnesota Supreme Court Video Oral Argument
BTW, this month's Minnesota Lawyer has an excellent article on the legal issues involved in the case.
The Minneapolis Star-Tribune has blanket coverage of both the case and the politics, starting here.
UPDATE 6/15: There is a good interview by Minnesota Public Radio with ex-Minn. Supreme Court Justice Jim Gilbert on the timing of a decision in the Franken-Coleman on MPR's website. Based on normal practice, Justice Gilbert says the decision would likely take over two months, but he thinks that because of the importance of the case, it will be closer to 30 days (usually a very fast turnaround)--likely before the 4th of July. No taxation with half-representation!
News coverage would suggest that the nomination of U.S. Federal Appeals Court Judge Sonia Sotomayor has unleashed a fire storm of criticism and led to active campaigning for and against her confirmation to the Supreme Court. However, except for the efforts of radio host Rush Limbaughand the new-book hawking Newt Gingrich, the campaign against the nomination has been fairly lukewarm. There is nothing to compete with the activity around the nominations of John Roberts and Samuel Alito. Sure the professional legal interest groups like the Judicial Confirmation Network and the Third Branch Conference are mounting some sort of campaign, but they practically admit that that they are merely exercising their arms for a more important fight in the future (e.g. if and when Justice Kennedy's seat is vacated). To a political memorablia collector, the key indicator is whether or not there is gear for sale actively supporting a campaign--buttons, bumper stickers, maybe T-shirts. I've been monitoring ebay since the announcement and have seen precious little to indicate a serias anti-Sotomayor campaign. From day one, a number of ready to make commemmorative items (buttons, trivets, decorated plates) appeared touting the judge, all using her official copyright-free photo. Button makers & printable decals are cheap and this is typical of any name in the news and does not indicate any real-world pro- or anti- campaigns, only entreprenuers trying to cash in on the news. The only item with a partisan stance is a "Confirm Sonia Sotomayor" T-shirt that appeared for sale . I've also checked the few "rejection" sites, including JCN's aboutsoniasotomayor.com and found nothing that fellow travelers can buy to show their views (even though they ARE taking donations).
I'll keep looking, but I've seen nothing with the passion of the following item from 2000:
For more detailed versions of the items shown, see my Repository of American Legal Ephemera on Flickr.
Still in the midst of its review of Judge Sotomayor, SCOTUSBlog is now beginning a review of U.S. Seventh Circuit Judge Diane P. Wood, the other main candidate for Justice Souter's seat who has a significant record of published opinions. Judge Wood was in DC recently and it has been reported that she met with President Obama. (I would note a similiar serendipitus meeting with the president was allegedly arranged with Gov. Jennifer Granholm during her visit to the press conference announcing an agreement on new CAFE standards).
While the press and many blogs have engaged in widespread speculation (see below) about who President Obama may pick for the Supreme Court, SCOTUSBlog has been methodically analyzing the opinions of the leading candidate, Sonia Sotomayor. The (now) four-part series suggests that she is no radical, and would likely rule in a manner not unlike the person she is replacing, David Souter.
Direct links to the series:
SCOTUSBlog has also promised an anaylsis of criminal law cases.
The range of candidates whose names have been raised, touted, floated, etc. makes it useful to bookmark Wikipedia's "Barack Obama Supreme Court candidates," which lists all rumored candidates and has links to citations to the particular news story where their names have been floated, and, when possible, links a wikipedia article about the candidate. My own pet theory* is that Gov. Jennifer Granholm will be picked. A fellow Harvard law alum and a top confident of the president, she has been intially rumored for many cabinet positions but somehow is not in the mix at the end. This leads me to think that Obama has some other idea for Granholm.
I agree that Sotomayor's selection is the conventional wisdom. However, I think a dark horse is California Supreme Court Justice Carlos R. Moreno, whose maleness has led to him being discounted--at least this time--because of the entirely correct view that the 1-8 gender ratio of the court needs to be balanced. However, if Granholm gets this pick, Moreno--a Mexican-American who has served on both state and federal courts--would be a very appealling choice for Obama's second Supreme Court selection.
*Essentially groundless, little more reasoned than my Belmont pick (Mind That Bird)...
While nothing about David Souter should surprise anyone--the concept of surprise contains an assumption of predictably, something that the shy and intensely private associate justice has never engendered--the news that he is leaving the Court is interesting because it offers President Obama his first chance to to put a mark on the court. His decision will be endlessly discussed on legal blogs over the coming weeks, and I promise a round-up of comment soon, but for now it is best to sum up the current conventional thinking and, more importantly, to begin to collect links to sources of biographical information.
The two bits of common wisdom floating about are that Obama will pick a woman and that he will pick a Hispanic. I would recall that this was the exact same talk that occured when President Bush was assessing candidates, and yet he instead appointed two white male Catholics, the one demographic that wasn't wanting. Nonetheless, Bush's whiff on these grounds might have caused Obama to bear down a little.
This theory favors one much discussed candidate, U.S. Second Circuit Court of Appeals Judge Sonia Sotomayor of New York (official bio; wiki). The child of a working class Puerto Rican family (her father was a tool-and-die worker; her mother a nurse), she not only finds herself on both lists, but her selection would also fulfill Obama's much repeated promise to look at candidates who came from backgrounds that suggested that that they could empathicize with less-privileged persons whose cases came before the Court.
Other women believed to be under consideration are Michigan Gov. Jennifer Granholm (official bio; wiki) and Homeland Security Secretary and former Arizona Gov. Janet Napolitano (official bio; wiki). Both are are former US Attorneys and served as their respective state's attorney general. Granholm is close to Obama (both are Harvard Law grads) but has not been tapped for the cabinet, suggesting to some that she is destined for some judicial appointment. Obama has also hinted that he'd like to to put someone with experience as an elective official on the Court--which has been free of such experience since Justice O'Connor retired. Other possible female candidates are Solicitor General Elena Kagan, the former dean of Harvard Law School (official bio; wiki), and Secretary of State Hillary Clinton (official bio; wiki), whose name I must mention just to freak out her rabid haters across the political spectrum.
Initially, Sotomayor leads the list of Hispanics. Some have mentioned Interior Secretary Ken Salazar, former state AG and US senator (official bio; wiki), but his past positions might anger the more liberal wing of the Democratic party (he opposed gay adoption early in his career) and his appointment would reduce the number of Hispanics in the cabinet to one (Labor Secretary Hilda Solis). U.S. Senator Bob Menendez (D-N.J.) (official bio; wiki) has also been suggested, but he has been dogged with ethical issues and has not practice law or served as a legal official since the 1980s. I expect to hear other Hispanic candidates in coming days.
One possible surprise choice is not a woman or a Hispanic: Obama's BFF Deval Patrick (official bio; wiki). Massachusetts Gov. Patrick, a close friend of the president's for many years, was in the Clinton DOJ and was later general counsel for Texaco and Coca-Cola. Like Granholm, Patrick's omission from the cabinet has given rise to the belief that he sits high on Obama's list of possible judicial picks, though perhaps for a later opening.
Photo: Postcard of Weare N.H., Justice Souter's home
With the 24-hour news media in full-lather and the #swineflu hashtag trending to the top of Twitter Search, as a information professional I feel impelled to rap my ruler sharply on the table and tell everyone to calm down and get the facts! Luckily, there is a place for this, the CDC Swine Flu page at the website of the federally-funded Centers for Disease Control (CDC) in Atlanta. Another source of information is the English language version of the World Health Organization's (WHO) Disease Outbreak News webpage.
Of course, if you really want to panic, please feel free to Google "swine flu plot." A recent search showed pages linking the outbreak to separate conspiracies launched by "the Jews," Satan, the CIA, anti-immigrant groups from the US far right, and the American pharmaceutical industry. The Freemasons, the Vatican, Queen Elizabeth and Al-Qaeda need to step up their game...
This item is a Senate chamber gallery pass issued by Sen. Hugo Black (D-Ala), a future senator, to a Miss Mary Orr, who may be the future author of a story that became an Oscar-winning movie.* These passes are not extremely rare, as they were issued frequently and most, including this one, had a stamped signature, not an autograph. (See "Justice Sherman Minton: A Bridge Between Eras" for another example) Nonetheless, like all historical artifacts they are an emotional connection to the past, a tangible, material item held by a real person who was a eyewitness to history.
Besides its association with a justice of the Supreme Court, date of the pass is the most interesting thing about this item. It was issued in April 1, 1937, in the height of the Senate debate over FDR’s ill-fated (and ill-considered) measure to reorganize the U.S. Supreme Court by adding a number of new justices. The so-called "court-packing" plan rocked the political world, raising fears that FDR’s landslide re-election victory in 1936 had spawned dictatorial ambitions in the president.
What is also intriguing is the recipient, a Mary Orr. The most prominent person in that era with that name was a young Broadway actress. The Canton Ohio-born Orr was very intelligent, later becoming a successful playwright and a writer whose first published short story became “All About Eve,” winner of the 1950 Academy Award for best motion picture. In 1937, Orr was still was a sought after ingénue actress, but perhaps the drama of the Senate debate inspired her and her party’s visit.
Later in 1937, Senator Black would be appointed by FDR to replace Justice Willis Van Devanter, one of the “Four Horsemen,” conservative justices who had banded together to oppose progressive ideas throughout the early 20th century. Black’s brief membership in the Ku Klux Klan in Alabama would make his confirmation rocky, but on the court he proved a reliable supporter of civil rights. Within three years after Black joined the court, the other three of FDR’s judicial foes were dead or had resigned, and had been replaced by progressives like Black. It seems time had its own reorganization plan.
*My identication might be utterly fanciful. The current phone directory website shows over 100 Mary Orrs currently in the U.S., statistical evidence that I could be full of beans.
RALE 1.4. (Photos linked to flickr entry).
In an unaminous decsion, the Iowa Supreme Court today struck down the state's ban on same-sex marriage on the grounds that it "violates the equal protection clause of the Iowa Constitution" by "exclud[ing] a class of Iowans [gay and lesbian couples] from civil marriage."
The Iowa court site is a little swamped so I'm making it available here.