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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]

[CNN says that the announcement will come at 10:15EST today. According to the Times, none of the left's favorites made the cut. I'm shocked. -- 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.

The press frames the story as a quest for diversity,while Obama has, more subltly, said that he's looking for empathy:

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....

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Submitted by lambert on

Let me know if that works. I think a bit flipped somewhere -- you know, the alternative universe theory.

Submitted by lambert on

More like outside baseball, but still:

UPDATE IV: Jeffrey Rosen's brother-in-law is Neal Katyal, the current Deputy Solicitor General in the Obama administration. If Sotomayor's prospects are torpedoed, that could clear the way for one of the other leading candidates to be named to the Court: current Solicitor General Elena Kagan. The selection of Kagan (rather than Sotomayor) would almost certainly result in Rosen's brother-in-law (Katyal) becoming Solicitor General. Additionally, Katyal himself was once a clerk for a Second Circuit judge, obviously raising the question of whether he was one of the anonymous sources for his brother-in-law's hit piece disparaging Sotomayor's intellect and character.

gqmartinez's picture
Submitted by gqmartinez on

That would be my bet on who the pick will be. Given Obama's pick and top choices for VP, I stopped thinking that Obama had much imagination or any of his own thoughts on governance.

vastleft's picture
Submitted by vastleft on

Can't paste link via phone, sorry.

From what I know, it looks like a middling, "centrist" pick. I wanted a real progressive (Repub presidents get to pack the court with conservatives, not so with Dems and liberals -- if they even want to pick liberals).

gqmartinez's picture
Submitted by gqmartinez on

But despite the "opposition" to Sotomayor, she was instantly one of the top contenders. So I find it odd to say her views are unknown being good in any way (still hoping it up?) And how choosing an instant "front runner" is somehow sticking it to the media who said she was a front runner.

Her sex and ethnicity are a plus. And at the very least it wasn't Sunstein. That has to count for a lot.

Davidson's picture
Submitted by Davidson on

A good link (highlighted by Salon, I believe). I know it's not dealing with executive power and I doubt Obama would pick someone who he didn't vet on that issue, but it's the best we got until the confirmation hearings (Let's see how she answers questions from Feingold):

Privacy and Information: Sotomayor has encountered a wide variety of privacy and access-to-information issues in her time on the Second Circuit, including cases involving the Freedom of Information Act and employer searches of employee workspaces.

In two cases involving requests under the Freedom of Information Act (FOIA), Sotomayor wrote an opinion that declined to order the release of the requested information, explaining that she did not want to “unreasonably hamper agencies in their decision-making.” Thus, in Tigue v. DOJ, 312 F.3d 70 (2d Cir. 2002), the panel denied a tax attorney’s request for a memorandum written by a Deputy U.S. Attorney outlining the office’s opinions and policies regarding tax investigations, notwithstanding that the memorandum had been cited in a publicly released report. And in Wood v. FBI, 432 F.3d 78 (2d Cir. 2005), while acknowledging that FOIA exemptions should be construed “narrowly, resolving all doubts in favor of disclosure,” her opinion denied a reporter’s request for an FBI memorandum regarding local FBI agents accused of lying. She reasoned that the “unwarranted invasion of privacy” for the individuals whose names would be released outweighed the public interest in disclosing a government employee’s identity.

In a case involving privacy issues, Leventhal v. Knapek, 266 F.3d 64 (2001), Sotomayor wrote an opinion that rejected a Fourth Amendment challenge to a public employer’s search of an employee’s computer after the employee was accused of being late, coming to the office infrequently, and spending his free time discussing personal computers with his coworkers. Although she agreed that the employee had a “reasonable expectation of privacy in the contents of his office computer,” Sotomayor also cautioned that “workplace conditions can be such that an employee’s expectation of privacy…is diminished.” Here, she explained, the search was permissible because it could have revealed employee misconduct.

MsExPat's picture
Submitted by MsExPat on

With little else to go on but the personal--knowing all too well what it felt like to be female and not rich, in the all-male club that was Princeton in the 70s-- I'm going to predict that she surprises us progressives in a very good way. Many justices have only allowed their true colors to show once they get the tenure-for-life--it frees a person to let her deepest character and beliefs come forward. (That works in the bad direction too, as we have seen with lyin' Roberts)

I'm pretty sure that Sotomayor is a person of character. Now she has, for the first time in her life, an unfettered and completely open stage to demonstrate this. And I think she will.

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Submitted by Valhalla on

When I was in law school, I had classmates who limited their, er, potentially crazier behavior not because they were upstanding kind of folks, but because one day they might be sitting in front a Congressional nomination panel and they didn't want any untoward stories from their law school days to arise.

Now, the actual chances of that occurring approach zero, but lawyers cynically plan ahead. Current federal judges who have even the slightest ambition to sit higher (and most do) keep their judicial records in mind when deciding cases and writing the opinions that go with them. Once there's no where else to go but retirement, some justices have felt free to find their 'real' voice. Whether Sotomayer will be one who goes more left than Obama/Versailles anticipates, who knows. But I certainly hope so; it's the most realistic hope I've been able to muster in the past year.

MsExPat's picture
Submitted by MsExPat on

I think that Sotomayor fits that profile to a t. The NYT just sent out a team of reporters to write her definitive life story. It's a fascinating read, and it points out that she was spotted by important people--Daniel Moynahan, Jose Cabranes--ver early on, and groomed for this position. Not surprising that she might have muffled some of her deeper beliefs.

However, the profile also points out her lifelong activism for Latino issues and adds one interesting factoid: she was on the board of SONYMA, the NY State mortgage lender, and during her tenure there worked to make sure that the disadvantaged were able to get access to state lending.

The NYT reporters interviewed another Princeton alumna for background about Sotomayor's Princeton days. I had a memory flash: I knew this woman. She was a stalwart in both the Latino students group and the feminist group (that's how I knew her).

I vaguely remember meeting Sonia through this friend. Sotomayor wasn't a core member of the activist Latina circle, but she did work with them.

Anyway, I think she may prove to be a nice surprise over the years.

Submitted by hipparchia on

Anyway, I think she may prove to be a nice surprise over the years.

it's entirely possible.

meanwhile, like lambert, i'm enjoying the thought of various heads exploding [and hoping that this isn't some kind of 'throwaway' choice on obama's part, someone he's willing to throw under the bus to get bipartisanship agreement on another nominee waiting in the wings].

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Submitted by Damon on

At least on the surface of things, and initially, this appears to be a decent pick or at least better than most of his appointments, if that's saying anything good. At least from what she's said of her life experience versus others', I can't see her being co-opted, ever, by Roberts and Alito. In this case, I do think her childhood and background will play more deeply than anyone is letting on in how she makes decisions. Some of the 'controversial' things that came out about her upon the announcement were actually kind of heartening to me if anything, if even they offended others, much in the same way that quite a few of the rumors about Obama were actually pluses in my book if they turned out to be true.

Here's to hoping she's even more of a "People's Justice" than she already appears to be.