What to watch for in Obama's Supreme Court pick: Views on executive power
[Greenwald praises the Sotomayor pick as "superb." And it's nice to put it to the Villagers who ran the smear campaign against her. It would be even nicer if her views on executive power were not "unknown," as Greenwald says they are (and how, then, "superb"?) -- lambert]
[White House confirms to Salon: It's Sotomayer --lambert]
UPDATE: In this morning's New York Times... Charlie Savage examines Obama's choice to replace David Souter on the Supreme Court in the context of executive power, noting that while Obama has rejected some of the most extreme Bush legal theories, his embrace of many of the same policies -- denial of habeas rights at Bagram, revised military commissions, preventive detention -- places Obama on what Savage called "his own collision course with the court."
As Savage notes, Souter was a very reliable vote in favor of placing some limits on Bush's executive power assertions (which were almost invariably 5-4 decisions against Bush). Thus, replacing Souter with a justice who is more receptive to broad claims of executive power could shift the balance of the court on these questions.
Savage examines the record, which reveals that one leading candidate -- Seventh Circuit Court of Appeals Judge Diane Wood -- has some very impressive past statements that demonstrate her recognition of the need to impose real limits on executive power, including what would appear to be her opposition to Obama's just-announced plan for military commissions ("'the principle is well established that extraordinary tribunals, such as military commissions, are not authorized to operate if the normal courts are open for business,' [Wood] wrote"). By contrast, Obama's Solicitor General -- Elena Kagan -- has, as Law Professor Darren Hutchinson also documents, repeatedly endorsed broad theories of executive power of the type that would fit in nicely with Bush's OLC circa 2004.
That Obama may be motivated to seek out a Justice with much more permissive views of executive power than those to which the Bush-41-appointed Souter subscribed -- all in order to ensure that the Court approves of his "counter-terrorism" policies -- simply underscores the irony of what Obama is doing in this area.
President Obama is keen on choosing a Supreme Court justice who possesses the quality of "imagination," a senior administration official said yesterday.
The imagination to impose preventive detention, perhaps?
To Obama, that means someone who can see beyond the legal formalism that characterizes most court decisions and deliberations.
"Formalisms" like imposing the rule of law on high officials who break it, for example?
The official said that this is what Obama meant by "empathy" -- a capacity to relate to real world experiences, a capacity to bring, when relevant, non-legal perspectives into the court.
And someone -- importantly -- who can help tell a new story about justice and civil rights and the law to the American people, the official said.
Exept that new story has already been told by the actions above. What I want told to me on the law is an old story: I want it enforced on the elite as well as the little people!
NOTE On diversity: We've seen that the color of the man's skin doesn't prevent him from shoveling trillions of dollars to the banksters with no transparency and no accountability; and that the content of the man's character doesn't prevent him from reneging on promises to re-impose the rule of law on the powerful (FISA; torture photos) -- or from suppressing and censoring single payer advocates while making the Orwellian claim that the health care "reform" process is "open." In many respects, despite vehement protestations at the time of the inaugural, the continuities between this administration and the last are as prominent as the differences. Plus ça "change," plus c'est la même chose....