JUDICIARY COMMITTEE PROBES JUSTICE KAGAN‘S ROLE IN OBAMACARE AT GOP’S REQUEST

The House Judiciary Committee has launched an inquiry into Associate Supreme Court Justice Elena Kagan’s involvement in the health care overhaul at the request of 49 Republican House members.

The probe will examine whether Kagan, who served as President Barack Obama’s solicitor general prior to her Supreme Court nomination, will be required to recuse herself for cases challenging the health care law, and the accuracy of her answers to the Senate Judiciary Committee during her confirmation hearings last July, CNS News reported.

In a letter to Attorney General Eric Holder on Wednesday, House Judiciary Chair Lamar Smith (R-Texas) requested “relevant documents and witness interviews in order to properly understand U.S. Supreme Court Associate Justice Elena Kagan’s involvement in health care legislation or litigation while serving as United States Solicitor General.” Smith requested they be made available by July 29.

Federal law bars Supreme Court justices from being involved in cases where their impartiality could be questioned or they previously served in an advisory capacity related to the case at hand.

Rep. John Fleming (R-La.) led 48 of his Republican colleagues in a letter to Smith and House Judiciary Committee ranking member John Conyers (D-Mich.) on June 24, pointing to statements made during her hearings the House members called “contradictory” to released Justice Department documents and urging an investigation.

Kagan said in written responses to the Senate Judiciary Committee that she had no involvement in developing the government’s legal responses to the health care law and was never asked her views or offered them, according to the Washington Times.

Fleming issued a statement Thursday applauding Smith’s request to Holder:

“I am confident that this investigation will uncover even more evidence that Justice Kagan was involved in Obamacare defense activities, contrary to her Senate confirmation testimony. How can any reasonable person believe that Justice Kagan can be impartial on ANY Obamacare case if she was involved in formulating a defense of this destructive law?

Video:  Rep. Fleming Discusses Call For Kagan Investigation

Posted on July 7, 2011 at 2:49pm by Madeleine Morgenstern

Source:  The Blaze

The Case Against Sotomayor

Liberals Make Case Against Sotomayor - Indictments of Obama's front-runner to replace Souter.

This isthe first in a series of reports by TNR legal affairs editor Jeffrey Rosen about the strengths and weaknesses of the leading candidates on Barack Obama's Supreme Court shortlist.

A judge on the U.S. Court of Appeals for the Second Circuit, Sonia Sotomayor's biography is so compelling that many view her as the presumptive front-runner for Obama's first Supreme Court appointment. She grew up in the South Bronx, the daughter of Puerto Rican parents. Her father, a manual laborer who never attended high school, died a year after she was diagnosed with diabetes at the age of eight. She was raised by her mother, a nurse, and went to Princeton and then Yale Law School. She worked as a New York assistant district attorney and commercial litigator before Senator Daniel Patrick Moynihan recommended her as a district court nominee to the first President Bush. She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.) And she has powerful supporters: Last month, the two senators from New York wrote to President Obama in a burst of demographic enthusiasm, urging him to appoint Sotomayor or Ken Salazar.

Sotomayor's former clerks sing her praises as a demanding but thoughtful boss whose personal experiences have given her a commitment to legal fairness. "She is a rule-bound pragmatist--very geared toward determining what the right answer is and what the law dictates, but her general approach is, unsurprisingly, influenced by her unique background," says one former clerk. "She grew up in a situation of disadvantage, and was able, by virtue of the system operating in such a fair way, to accomplish what she did. I think she sees the law as an instrument that can accomplish the same thing for other people, a system that, if administered fairly, can give everyone the fair break they deserve, regardless of who they are."

Her former clerks report that because Sotomayor is divorced and has no children, her clerks become like her extended family--working late with her, visiting her apartment once a month for card games (where she remembers their favorite drinks), and taking a field trip together to the premier of a Harry Potter movie.

But despite the praise from some of her former clerks, and warm words from some of her Second Circuit colleagues, there are also many reservations about Sotomayor. Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Some former clerks and prosecutors expressed concerns about her command of technical legal details: In 2001, for example, a conservative colleague, Ralph Winter, included an unusual footnote in a case suggesting that an earlier opinion by Sotomayor might have inadvertently misstated the law in a way that misled litigants. The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

I haven't read enough of Sotomayor's opinions to have a confident sense of them, nor have I talked to enough of Sotomayor's detractors and supporters, to get a fully balanced picture of her strengths. It's possible that the former clerks and former prosecutors I talked to have an incomplete picture of her abilities. But they're not motivated by sour grapes or by ideological disagreement--they'd like the most intellectually powerful and politically effective liberal justice possible. And they think that Sotomayor, although personally and professionally impressive, may not meet that demanding standard. Given the stakes, the president should obviously satisfy himself that he has a complete picture before taking a gamble.

By:  Jeffrey Rosen - the legal affairs editor at The New Republic.

Source: THE NEW REPUBLIC 2009

Posted:  Knowledge Creates Power

RELATED CONTENT:

Rosen (5/8/09): More Sotomayor--A Response To Critics

Rosen (3/8/1993): The Education of David Souter

Rosen (3/12/08): Why The Dems Lack Supreme Court Nominees

A Portrait of Judge Sonia Sotomayor

"Empathy" Versus Law

"Empathy" Versus Law”… Continued

Karl Rove: Obama's Past Will Haunt Court Pick

How Joe Biden Wrecked the Judicial Confirmation Process

New Haven, Ct. Firefighters Claim Reverse Discrimination

Obama the Destroyer

Justice not for all

Firefighter Case Heads to Supreme Court

A Portrait of Judge Sonia Sotomayor

Educational and Professional Background

Judge Sonia Sotomayor graduated from Princeton University summa **** laude in 1976 and attended Yale Law School. At Yale, she served as an editor of the Yale Law Journal and managing editor of the Yale Studies in World Public Order. She began her legal career in 1979 as an Assistant District Attorney in New York County. Since October 7th, 1998, Sonia Sotomayor has been a judge of the United States Court of Appeals for the Second Circuit. Despite the fact that President George H.W. Bush nominated Sotomayor for the district court judgeship, there is more to the story. "When President Bush nominated Sotomayor in 1991, the New York senators Moynihan and D'Amato, had forced on the White House a deal that enabled a senator not of the President's party to name one of every four District Court nominees in New York. Sotomayor was Moynihan's pick." According to Ed Whelan, it is likely that Bush only nominated her to move along the other nominees that Moynihan was holding up.

Judicial Activism

Judge Sotomayor appears willing to expand constitutional rights beyond the text of the Constitution. The most direct example of this is found in her decision in Malesko v. Correctional Services Corp., 229 F. 3d 374 (2d Cir 2000), rev'd 534 U.S. 61 (2001). In that case, Judge Sotomayor attempted to expand the liability of individual federal agents who violate constitutional rights to include corporations. In a 5-4 decision, the U.S. Supreme Court reversed the Second Circuit's decision. Chief Justice Rehnquist noted that the plaintiff was "seek[ing] a marked extension of Bivens, to a context that would not advance Bivens' core purpose of deterring individual officers from engaging in unconstitutional wrongdoing." Correctional Services Corp v. Malesko, 534 U.S. 61 (2001).

Sovereignty

Judge Sotomayor has written a foreword to a book called The International Judge: An Introduction to the Men and Women Who Decide the World's Cases, which suggests that she believes foreign case law and statutes have a role in the adjudication of U.S. cases.

Track Record

In an October 3, 2008 commentary on National Review Online, Ed Whelan pointed out that "[o]n those occasions on which the Supreme Court has reviewed Sotomayor's rulings, she hasn't fared well, drawing some pointed criticism and garnering at most 11 out of 44 possible votes for her reasoning across five cases.
No one expects that Barack Obama will select federal judges who are faithful to the Constitution, and many Americans (especially we Constitutionalists) have expressed a sense of alienation and futility in opposing Obama nominees. The truth is, however, that now is the time to mount the most vigorous campaign possible on behalf of Constitutionalist principles. James Madison said it well, "Knowledge will forever govern ignorance: and a people who mean to be their own Governors, must arm themselves with the power that knowledge gives."

Now is the perfect time to arm ourselves with knowledge — to become knowledge-empowered! You can begin this process by visiting our Eagle Forum web site www.eagleforum.org and clicking on "Blackstone Blitz" — a short but power-packed study designed for just such a time as this. Continue to arm yourself with additional knowledge from reputable sources as the Sotomayor nomination battle heats to a white-hot intensity, climaxing in the confirmation vote in the U. S. Senate. Share that knowledge, and let your leaders know the truth about Constitutionalist judging!

How close is the "portrait of Sotomayor" to the "portrait of a Constitutionalist judge"? Judge for yourself!!!

Comments:

Golfinsailor:

She may get passed but probably not, as she has in all likelihood not paid her taxes, and most probably has a few too many skeletons in her closet, if she did pay her taxes she would be the very first one of Obama's appointees that has.

WaitinForHopeNChange:

She already mis-spoke and then had to correct herself on judges ‘making laws’ instead of interpreting laws and judging whether they are in line with the Constitution… a Supreme Judge’s job.

rcbpage:

According to Obama, Judge Sotomayor, is a good woman, but she is a crappy judge, most of her opinions and judgments have been overturned by the supreme court as unconstitutional. she holds an judicial rating of 11 out of 44 points. and is extremely negatively biased against white males and toward woman and Latinos. She also believes that the  judicial opinions on our laws should be based  in the foreign laws of the EU and UN, and not our constitution. Another of her beliefs is that judges create policy, that one reason alone is enough to disqualify her.

AverageJill: 

Judge Sotomayor dismissed the case of the New Haven, Connecticut Firefighters Claiming Reverse Discrimination. The U.S. Supreme Court  has decided to hear the New Haven Reverse Discrimination Case… should make you (us) think!

She drew much negative from her opinion and stand on this case.

AmericanRights:

Many of Sotomayor’s comments and opinions are troubling!  She has made statement like a Latina’s perspective would be different than a white males. Hello???  The law and especially the constitutional law is the law… period.  If can’t be objective, this is not the job for you.  It is not the job of the Supreme Court to make policy or affect policy in anyway!  You want a Constitutional specialist or at least some who understands the position of a Supreme Court Judge to fill one of those nine seats, and that is not her.  Sotomayor said, “ The Court of Appeals is where policy is made.”  Hello??

ScaredInAmerica":

Sotomayor is liberal, a reverse racist, and believes that race and gender affect a judge’s rulings and opinions… and that that is okay.  She has also been described as combative and not a team player.

AvrelJax:

There is not room for empathy or personal belief on the Supreme Court. Justices need to be able to put their personal politics away and interpret the law according to the Constitution; no more no less.  This is not Judge Sotomayor!!  Time for the next nominee!!

Posted: Knowledge Creates Power

Related Articles:

• "Empathy" Versus Law
• "Empathy" Versus Law”… Continued
• Karl Rove: Obama's Past Will Haunt Court Pick
• How Joe Biden Wrecked the Judicial Confirmation Process
• New Haven, Ct. Firefighters Claim Reverse Discrimination
• Obama the Destroyer
• Justice not for all
• Firefighter Case Heads to Supreme Court

How Joe Biden Wrecked the Judicial Confirmation Process

The vice president can't complain if Republicans object to Obama's Supreme Court nominee.

Vice President Joe Biden is widely praised for the expertise he brings in helping Barack Obama choose a replacement for retiring Supreme Court Justice David Souter. Having served for three decades on the Senate Judiciary Committee, he is considered an asset both for his relationships with committee members and his familiarity with the nuts and bolts of judicial nominations. So let's have a look at how the confirmation process actually fared under Mr. Biden's leadership.

As a member of the Senate Judiciary Committee, Mr. Biden was present for the nomination and confirmation of every currently sitting Supreme Court justice except for John Paul Stevens. In 1986, the year before Mr. Biden took over as committee chairman, Antonin Scalia was approved by the Senate in a vote of 98-0. Then came Robert Bork and a presidential election.

Before Judge Bork's nomination, Mr. Biden had said he would support him. And why not? He was widely considered a dazzling legal mind and had even received (during his confirmation to the D.C. Circuit Court of Appeals) a rating of "exceptionally well-qualified" from the liberal-leaning American Bar Association. "Say the administration sends up Bork," Mr. Biden told the Philadelphia Inquirer in November 1986, "and, after our investigations, he looks a lot like Scalia. I'd have to vote for him, and if the [special-interest] groups tear me apart, that's the medicine I'll have to take."

But by the time of the actual nomination, Democrats were promising to play "hardball" with President Ronald Reagan's nominees and Mr. Biden was running for president. Mr. Biden's Democratic colleagues lined up against the nominee. They were led by Sen. Edward Kennedy, who demonized him with a monologue on "Robert Bork's America," which he promised would be "a land in which women would be forced into back alley abortions." Liberal groups joined the chorus for Mr. Biden to recant his earlier support, which he did, helping to defeat Mr. Bork's nomination.

Back then the tactics were considered shocking. Warren Burger, the former chief justice, said he was "astonished" by the comments he'd read about a nominee he thought was one of the most qualified he'd seen in 50 years. If the Senate rejected Mr. Bork, he said, "then they shouldn't have confirmed me."

Just one year after the conservative Mr. Scalia's unanimous confirmation the winds had changed dramatically. The Senate had hitherto proceeded on the principle that it owed the president deference on his judicial selections. No longer.

"The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary," Mr. Biden said in August 1987 in defense of his newfound opposition to Judge Bork. "The Senate has an undisputed right to consider judicial philosophy." With that marker placed, the ultimate winner of the seat vacated by Justice Lewis Franklin Powell Jr. was a nominee nearly devoid of political philosophy -- Anthony Kennedy.

Mr. Biden's obstruction was further rewarded by the first President Bush. In attempting to dodge controversy, he gave liberals David Souter, whose appeal was enhanced by the fact that he had been a federal judge for less than a year and had almost no paper trail.

By the time Clarence Thomas's confirmation hearings came around, Mr. Biden's modus operandi was well known. In his book, "My Grandfather's Son," Justice Thomas recalls that before the Anita Hill inquisition began, Mr. Biden called him and said "Judge, I know you don't believe me but if the allegations come up I will be your biggest defender." "He was right about one thing," Justice Thomas wrote, "I didn't believe him."

Under Mr. Biden's leadership, holding up nominations to the nation's appeals courts also became a routine exercise. In 1988, the Senate Judiciary Committee delayed 17 months before refusing to confirm law professor and scholar Bernard Siegan to the Ninth Circuit Court of Appeals because of his libertarian positions on economic issues. In 1992, Mr. Bush's nominee to the 11th Circuit, Edward Carnes, endured an eight-month delay and an attempted filibuster before finally being confirmed. By 1992, 64 judicial nominees were stuck in the senatorial muck waiting for the Judiciary Committee to give them a yea or nay.

The Senate obstructionism that began with Reagan's nominees thus became a game of political revenge as each new batch of nominees was made to suffer at the hands of one party for the treatment its nominees had received in the last round. Republicans blocked some of President Bill Clinton's nominees, including briefly, Sonia Sotomayor, the Second Circuit judge said to be on Mr. Obama's short list to replace Mr. Souter. Unable to bottle up Miguel Estrada in committee in 2003, Democrats filibustered him on the floor of the Senate. Sen. Carl Levin (D., Mich.) held up as many as four judicial nominations for years in retribution for Republicans blocking Mr. Clinton's nomination of Helene White (she was confirmed for the Sixth Circuit last year). And so on.

The effect of this game has been toxic not only for the nominees but for the courts. Many circuits have suffered judicial emergencies, defined as vacancies on courts overwhelmed by their caseloads, or vacancies languishing more than 18 months on busy circuits. Some stood open longer. The Bush administration's 2006 appointment of Peter Keisler to fill the D.C. Circuit seat vacated by John Roberts was left to expire, unfilled, at the end of the administration.

True, Supreme Court nominees John Roberts and Samuel Alito were confirmed -- but without the support of then Sens. Joe Biden or Barack Obama. Mr. Alito was confirmed by a vote of 58-42, the second narrowest margin in Senate history (after Clarence Thomas). Even Chief Justice Roberts's margin of 78-22 was contentious in historical terms. Ruth Bader Ginsburg was confirmed 93-3, Sandra Day O'Connor 99-0, John Paul Stevens 98-0, and David Souter 90-9.

What is in store for Mr. Obama's nominees remains to be seen. Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, has said he isn't inclined to the filibuster even if it is an option and most expect the president's Supreme Court choice will be confirmed.

As a matter of judicial philosophy, however, Mr. Obama has said he wants a nominee who "understands that justice isn't about some abstract legal theory or footnote in a case book." If that is considered by opponents as grounds for rejection Joe Biden will know where they're coming from.

By COLLIN LEVY - Ms. Levy is a senior editorial writer at the Journal, based in Washington.

Source:  in The Wall Street Journal, page A13

Posted: Knowledge Creates Power

Democrats Strip Arlen Specter of Committee Rank

Sen. Arlen Specter was unexpectedly stripped of his seniority Tuesday night in a humiliating blow from Democrats who earlier had welcomed the former Pennsylvania Republican’s defection from the GOP.

The move not only strips the five-term senator of his legislative clout but also hampers his ability to persuade voters he can still bring influence to issues in Pennsylvania as he approaches election there in 2010.

Specter lashed back Wednesday, strongly suggesting he had been betrayed.

In a statement released Wednesday afternoon, Specter said Senate Majority Leader Harry Reid, D-Nev., had promised him that his seniority would be preserved.

“Sen. (Harry) Reid assured me that I would keep my committee assignments and that I would have the same seniority as if I had been elected as a Democrat in 1980,” Specter said. “It was understood that the issue of subcommittee chairmanships would not be decided until after the 2010 election. Some members of the caucus have raised concerns about my seniority, so the caucus will vote on my seniority at the same time subcommittee chairmanships are confirmed after the 2010 election. I am confident my seniority will be maintained under the arrangement I worked out with Sen. Reid.”

Specter added that he would “continue to be a staunch and effective advocate for Pennsylvania¹s and the nation's priorities.”

The likelihood that Specter would lose a Republican primary prompted him to jump to the Democrats. Now, although President Barack Obama has promised to campaign for him, Specter could face a Democratic challenger in that party’s primary. After that, he may be up against former Gov. Tom Ridge, the state’s most popular Republican, in the general election.

The Senate vote stripping him of rank came after Specter made a huge faux pas against his new party when he told The New York Times Tuesday that he hoped Republican Norm Coleman wins the protracted court battle over the Minnesota Senate seat. Democrats want candidate Al Franken to prevail over Coleman so the party can attain a filibuster-proof majority of 60 in the Senate.

Politico reported that Specter has managed to alienate Democrats just a week after his much bally-hooed announcement.

"Since declaring himself a Democrat last Tuesday, Specter has defied Senate Majority Leader Harry Reid and the White House on virtually everything that’s come down the pike: the budget, mortgage reform, the Al Franken-Norm Coleman race, even President Barack Obama’s appointment of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel," Politico reported. "All while quibbling over whether he said he’d be a 'loyal Democrat' — and insisting that he had an 'entitlement' to transfer his Senate seniority from one side of the aisle to the other."

Reid read a resolution on the Senate floor Tuesday making Specter the most junior Democrat on four of his five committee assignments. It stood in stark contrast to Reid's alleged promise that Specter would retain his seniority if he switched from the Republican to the Democratic party.

Specter serves on the Appropriations, Judiciary, Veterans Affairs, Environment and Public Works, and Special Aging committees. He had been the top Republican on the Judiciary Committee, which is preparing for hearings on a Supreme Court nominee to replace the retiring Justice David Souter.

When Republicans were in the majority, Specter chaired the confirmation hearings for Chief Justice John Roberts and Justice Samuel Alito. He now will have to wait in line to question the nominee, the Associated Press reported. Specter also was the top Republican on the subcommittee that funds the National Institutes of Health. The issue is a personal one for him because he has twice battled cancer.

The move came only a day after Specter boasted of the power he had through seniority to voters in Pennsylvania.

"My senior position on Appropriations has enabled me to bring a lot of jobs and a lot of federal funding to this state," Specter said at a town hall meeting on Monday, according to CNN.

Over and over, CNN reported, Specter made a point of telling an auditorium filled with medical faculty and staff about the hundreds of millions of dollars he delivered to the Keystone State, thanks to the power he's accumulated in his 29 years in the Senate.

"Pennsylvania has a big interest in my seniority, a big interest," he said.

Speaking on NBC's "Meet the Press" Sunday, Specter said that it's an "entitlement" for him to retain his seniority on those committees.

"I was elected in 1980. I think that's not a bribe or a give for something extraordinary," he said. "I'll be treated as a Democrat as if I was elected as a Democrat."

Specter could have a chance to reclaim his seniority on influential committees such as the Appropriations and Judiciary Committees after the 2010 midterm elections, Democrats have suggested.

Perhaps realizing the consequences his Coleman remarks, Specter quickly changed his tune. He told Congressional Quarterly on Tuesday that he would like to see more Democratic members elected in the 2010 midterms.

"In the swirl of moving from one caucus to another, I have to get used to my new teammates," Specter said. "I’m ordinarily pretty correct in what I say. I’ve made a career of being precise. I conclusively misspoke."

But Democrats have not only stripped Specter of his clout, they’ve used his defection from the GOP to attack his former party colleagues. In a new Web ad from the Democratic National Committee, they parody the TV show “Survivor to highlight "the continued disunity" within the GOP.

The final result is that Arlen Specter has betrayed the party that supported him for decades, only to be apparently betrayed by the party that seduced him to defect.

Source:  Newsmax

I say, “Boo-Hoo for you, Arlen!!” 

The Republicans are well rid of Spector!!  But this is a good example of the Dem’s M.O., like jackals they attack each other when it serves their purpose!  Today you are the liberal’s prize… Tomorrow you are their feast!

Posted By:  Ask Marion – Knowledge Creates Power