Judicial Nominations

Card Check: Sen. Hatch Warns that NLRB Has Plans

Sen. Orrin Hatch (R-UT) spoke on a conference call with bloggers today, primarily on the topic of the tax increases that will hit on Jan. 1 unless Congress extends the lower rates enacted in 2001 and 2003. Among other issues that arose were the Employee Free Choice Act, the potential of a lameduck session of Congress, and President Obama’s recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services.

Sen. Hatch noted that President Obama made the recess appointment before there had even been a committee hearing on Berwick’s nomination, and then, after the appointment, nominated Berwick again. Hatch obviously saw a similarity with the handling of the nomination and subsequent recess appointment of Craig Becker, an SEIU and AFL-CIO counsel, to the National Labor Relations Board. Sen. Hatch:

They’ve got people on the National Labor Relations Board right now that think they can do though regulation, by the board, that which can’t get through the Senate of the United States of America.

The Senate is not going to give them card check, it’s just that simple. So what are they going to do? They’re going to come up with an approach, or have come up with an approach, that says only those who vote count in the card-check area, or in any other area – in other words, only 51 percent of those who vote, in the whole employment complex.

Now that kind of stuff has never been done before, but they’re doing it.

When they don’t have the ability to do what’s right, they’ll do what’s wrong. And to be honest with you, it’s giving us a lot of fits.

Given the context of the conversation, we took Hatch’s “they” to be the Obama Administration and Senate Democratic allies, supported by Big Labor.

Sen. Hatch is recalling the National Mediation Board’s decision in May to allow a union to be recognized if a simple majority of workers who cast ballots approved. The decision, which applies to workers at airlines and railroads, overturned a 76-year-old rule that governed union elections. The new rules went into effect on July 1, the NMB said in a news release.

The Senator’s comments raised a realistic concern: If one regulatory and quasi-judicial agency with an Obama-appointed majority on its board can make such a radical change in longstanding law, what’s to stop the NLRB from doing the same?

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Judge Sotomayor on Civil Justice Reform

The contributors to the Point of Law legal blog have been analyzing Judge Sonia Sotomayor’s writings and judicial record, providing some insight into how she would rule as a U.S. Supreme Court justice. James Copland, Director of the Center for Legal Policy at the Manhattan Institute — sponsor of the website — recently added to a dicussion of her views on tort reform.

1996 Suffolk University Law Review article by her suggest Sotomayor is skeptical of experts, “hired hands,” used in personal injury litigation. However, she also criticized legislative efforts to bring rationality to the civil justice system by introducing caps on economic damage awards. In our view, that’s an entirely appropriate policy to ensure a consistent application of the law and end capricious, outrageous jury awards that serve as a “tort tax” on business and the economy. Sotomayor describes such tort reforms as “overreactions that undermine the principles of our judicial system.”


Even if Judge Sotomayor’s comments are read merely to express policy disagreement, they are troubling. If her notion is even stronger — that tort reforms such as the Common Sense Product Liability Legal Reform Act of 1996 are in fact unconstitutional — then I agree with Ted [Frank’s] conclusion that her “argument is not just a statement of judicial activism, it’s a disturbing statement of judicial supremacy over the other branches of government.” Given the strength of her claims — that such laws “undermine the principles of our judicial system” and are “inconsistent with the premise of the jury system” — the less charitable reading seems more than plausible. In any event, I echo Ted’s “hope [that] someone on the Senate Judiciary Committee inquires into it.”

Point of Law has a category devoted to the Sotomayor nomination here. A good colloquy and useful information for those wondering how her views might affect business and the economy.

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The Sotomayor Nomination in a Business Context

A round-up of commentary and reporting on President Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court, focusing on the implications for business and business law…

Walter Olson of the Manhattan Institute has a dispassionate, analytical piece at Overlawyered.com, “Obama’s ‘Wise Latina’“:

Issues of business law don’t come across as Sotomayor’s great passion one way or the other, so it’s hard to know what all this portends for the high court’s direction on business issues should she be confirmed. As Home Depot‘s Bernard Marcus and others have pointed out, for all of David Souter’s predictable role on the court’s liberal side in most high-profile cases, he in fact steered to middle-of-the-road, hard-to-characterize views on many issues of litigation, liability and procedure, either as a swing vote or as the author of opinions. (Two key issues to watch: what sort of constitutional restraints, if any, there are on punitive damages, and how much scrutiny judges should give to initial pleadings to determine whether a federal lawsuit ought to go forward.)

Some of her backers say they expect that Sotomayor will emerge as a liberal in the less than fiery, relatively “legalistic” Ginsburg/Breyer mold. Even assuming that happens, some outcomes will soon change in a direction most businesses will find adverse. And in coming weeks, both friends and foes will be going over her published opinions–some with hope, others with dread–for clues to whether she might form the nucleus of some future new and more seriously left-wing faction on the court.

Also reporting on Sotomayor and business was Nathan Koppel at the Wall Street Journal’s Law Blog, “Sotomayor and Business: ‘No Reason . . . to be Concerned’“:

The judge, for example, has sided with defendants in cases involving the standards that govern when cases can be brought as a class actions and the extent to which plaintiffs’ claims can be preempted by more defense-friendly federal or international laws.

“There is no reason for the business community to be concerned,” says Lauren Rosenblum Goldman, a partner at Mayer Brown LLP. The judge has “ruled in favor of preemption about half of the times” that the issue has been presented to her, she says.

Two cases that went before the Second Circuit of Appeals on which Judge Sotomayor sits were certainly high-profile ones that concerned business; the National Association of Manufacturers was involved through filing of amicus briefs.

(continue reading…)

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President Obama on Judge Sotomayor, Background, Reaction

From the White House, “Remarks by the President in nominating Judge Sonia Sotomayor to the United States Supreme Court.”

I don’t take this decision lightly.  I’ve made it only after deep reflection and careful deliberation.  While there are many qualities that I admire in judges across the spectrum of judicial philosophy, and that I seek in my own nominee, there are few that stand out that I just want to mention.

First and foremost is a rigorous intellect — a mastery of the law, an ability to hone in on the key issues and provide clear answers to complex legal questions.  Second is a recognition of the limits of the judicial role, an understanding that a judge’s job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent and a determination to faithfully apply the law to the facts at hand.

These two qualities are essential, I believe, for anyone who would sit on our nation’s highest court.  And yet, these qualities alone are insufficient.  We need something more.  For as Supreme Court Justice Oliver Wendell Holmes once said, “The life of the law has not been logic; it has been experience.”  Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers.  It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.  And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

The White House blog provides more background:

The Law School Admission Council has a video discussing her story as part of their “Believe and Achieve: Latinos and the Law” program that is  also well worth watching. Finally, the White House also sent out the following background, giving a thorough look at Judge Sotomayor’s life and career.
Senate Republican Leader Mitch McConnell issued a statement:

Senate Republicans will treat Judge Sotomayor fairly. But we will thoroughly examine her record to ensure she understands that the role of a jurist in our democracy is to apply the law even-handedly, despite their own feelings or personal or political preferences.

Our Democratic colleagues have often remarked that the Senate is not a “rubber stamp.” Accordingly, we trust they will ensure there is adequate time to prepare for this nomination, and a full and fair opportunity to question the nominee and debate her qualifications.

And this Pajamas Media post by Roger Kimball, editor of The New Criterion, summarizes the conservative case against Judge Sotomayor by citing the nominee’s most prominent statements that will draw scrutiny:

Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, believes that the job of judges is to make the law, not uphold it.

Don’t believe me? Look at this clip from a 2005 symposium at Duke University. The Court of Appeals, said Sonia Sotomayor, the first Hispanic nominee to the Supreme Court, “is where policy is made.” She went on to note that she shouldn’t say that publicly — after all, cameras were rolling — but that, she said, was the truth of the matter. I hope that video clip is played early and played often. [UPDATE: I hope her 2002 comments at Berkeley about how it is appropriate for judges to draw upon their “experiences as women and people of color” in their judicial decision making are aired often as well. The more one looks into Sotomayor’s recrod, the clearer it is that, as a friend of mine put it, identity politics is her judicial philosophy.]


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President Obama to Nominate Sotomayor for Supreme Court

The New York Times has the news about the President’s 10:15 a.m. announcement, “Obama Chooses Sotomayor for Supreme Court Nominee

The National Journal’s always excellent legal reporter, Stuart Taylor, wrote a critical column about her in the latest issue, “Identity Politics And Sotomayor.” The subhed is “The judge’s thinking is representative of the Democratic Party’s powerful identity-politics wing.”

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On Replacing Justice Souter

From Reuters, “Obama’s pick may not shift Supreme Court direction“:

The experts said Souter’s replacement would face important business issues, including whether to put new constitutional limits on punitive damage awards designed to punish companies for past misconduct.

“Our general preference is for judges who follow what is written in the law and who do not make up new rights,” said Quentin Riegel, vice president for litigation at the National Association of Manufacturers.

He hoped Obama would appoint someone with experience in business cases, similar to John Roberts whom then-President George W. Bush appointed as chief justice in 2005.

To summarize: Souter replacement may or may not have an effect on the court, and NAM favors rule-of-law judges who understand business.

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From Finance to Welding to Nuclear Power Plants

CBS News reports many more stories on workforce skills and training than the other TV networks (or so it seems to us), and the correspondents have a good sense of the issues.  On Tuesday’s CBS Evening News, for example, a story comparing the two presidential candidates’ records on eduction and training was packaged within a report on manufacturing jobs in Florida, blue collar careers more attractive given today’s financial turmoil.

Like a lot of guys with a finance career, Peter Halpern was watching the economy and worrying about supporting his wife, Eva, and daughter, Katrina.

To deal with the heat and pressure, Halpern turned … to heat and pressure.

“When the sparks are flying, and the tools are grinding, and you hear the noise,” he said. “I love it.”

After years in the white-collar world, Halpern is becoming a welder.

Halpern folded his investment firm and enrolled in a worker training program in Pinellas County. Prospects for employment are good, especially given the demand for workers to help refurbish and build new nuclear power plants.  As Lee Middleton, Halpern’s welding instructor, says:

All the baby boomers are retiring, and there is nobody to replace them. Now all these people are realizing this and they’re coming for the money and the benefits – and the future,” Middleton said.

At $30 an hour, plus lots of overtime, you can reach six figures quickly.

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Judicial Questionnaires: Why Not?

Family News in Focus’ weekend radio program broadcast the best round-up we’ve heard of the legal issues involved in voters guides and questionnaires for judicial candidates. (Download audio file.)

Granted, it’s an advocacy piece; conservative Christian groups like Focus in the Family want more transparency in state judicial elections because they believe it benefits candidates who are rule-of-law judges (as opposed to liberal activists). State business groups tend to agree.

The report brings more info to bear on a national issue being played out in the states than we’ve encountered anywhere else. Did you know that the James Madison Center has organized the Judicial Accountability Project to end laws and rules that prevent judges from answering questionnaires? Legal efforts are under way in eight states.

As John Stamberger of the Florida Family Policy Council says: “All judges have views. The only question is [whether] they express those views when they write a decision, when they do a dissent, or when they rule from the bench. The question is, does it serve the interest of a robust democracy for us to know those views before they’re elected or learn those views after they’re elected. ”

The soundfile linked above is the full 5:30 interview broadcast this weekend. A shorter version was broadcast on April 28th; here’s the transcript.

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Everything I Needed to Know…Oh, C’mon

Retired U.S. Supreme Court Justice Sandra Day O’Connor had an op-ed published in The Wall Street Journal last week, “Justice for Sale,” bemoaning the rise of politicized judicial elections and concomitant “special interest” money. Familiar O’Connor arguments, well worth engaging, even to those of us who see higher-profile judicial races as encouraging citizen involvement in our justice system. And O’Connor’s disreputable “special interest” is another person’s livelihood.

But this sentence toward the end, in the middle of a plea for improved civics education (agreed!), undermined the seriousness of her case:

Perhaps children can understand the role of a fair and impartial judiciary better than any of us. Children depend on their teachers, their parents and their sports referees to know the rules and to apply them fairly.

Submitted, your honor: Children do NOT understand the role of a fair and impartial judiciary better than any of us. OK, they’re quite conversant in the Eighth Amendment of the U.S. Constitution — no spanking! — but otherwise, we’ve found kids to be quite wanting in their legal comprehension.

All this came to mind after reading a line yesterday in the New York Times obituary of Harold J. Berman, the great legal scholar.

Harold Joseph Berman was born on Feb. 13, 1918, in Hartford. Under a theory he enunciated in 2006 for The Fulton County Daily Report, an Atlanta legal and business newspaper, he said that he, like all children, had been a law student from a young age.

“A child says, ‘It’s my toy.’ That’s property law,” he said. “A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.”

Well, if Harold Berman says so …

Hat tip to Jonah Goldberg at the National Review.

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Survey: A Majority Probably Have No Idea

Washington Post, Page A03 Sunday (A1 in early editions), “Fewer See Balance in Court’s Decisions.”

About half of the public thinks the Supreme Court is generally balanced in its decisions, but a growing number of Americans say the court has become “too conservative” in the two years since President Bush began nominating justices, according to a new Washington Post-ABC News poll.

Nearly a third of the public — 31 percent — thinks the court is too far to the right, a noticeable jump since the question was last asked in July 2005. That’s when Bush nominated John G. Roberts Jr. to the court and, in the six-month period that followed, the Senate approved Roberts as chief justice and confirmed Justice Samuel A. Alito Jr.

Quick, and don’t cheat. Name five decisions the Supreme Court handed down in the last term. And were those decisions “conservative” or “liberal?”

All this polls tells us is that after a year of being told incessantly — and incorrectly — by the media that the court was handing down “conservative” decisions, more people in a survey say the court is more conservative, and maybe too conservative. One of the cases most often cited to make the argument is the court’s ruling upholding the federal ban on partial-birth abortion. Conservative? The law passed the Senate in 2003 by a vote of 64-34 and the House by 281-142. Seems pretty popular, bipartisan, not by any stretch “conservative.” The court’s ruling upheld the policymaking branch’s ability to make policy. Only those who prefer an activist court, one that legislates, would term that “conservative.”

And look at the first person quoted in the story: Ralph Neas, president of People for the American Way. A Google search of the Washington Post and Ralph G. Neas has him cited 67 times. What a circle of circles: Post writes stories arguing the court is conservative, quotes Ralph G. Neas warning of its dangerous conservatism, contracts for poll that shows public has been influenced by Washington Post saying court is conservative, and then quotes Ralph G. Neas avering it so. And the media wonder why people don’t trust them.

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