By a slim 5-4 margin, the Supreme Court ruled in favor of the white New Haven firefighters whose promotions were denied because not enough non-whites passed the promotion exam.  Among those ruling the other way on the lower court was a certain wise Latina.

The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.  New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”  Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday.

It’s worth noting that the Justice that Sotomayor would replace, Souter, ruled in the way she would reasonably have been expected to and that the outcome of this case would presumably have been the same were she on the Court.

On it’s face, however, Ginsburg’s dissenting opinion is absurd.  The firefighters in question certainly had a right to be promoted under the extant rules of the game.  Promotions were based partly on a test. They did well on the test and would have been promoted but for racial discrimination.  The fact that fear, doubt, and uncertainty yielded a situation where nobody was promoted does not in any way mitigate the harm done to them.

UPDATE: Glenn Greenwald is right, here, methinks:

In light of today’s ruling, it’s a bit difficult — actually, impossible — for a rational person to argue that Sotomayor’s Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel’s ruling; and now: (d) four out of the nine Supreme Court Justices — including the ones she is to replace — agree with her.

Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did.  It’s perfectly reasonable to argue that she ruled erroneously, but it’s definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.

Sotomayor is a fairly garden variety left-of-center judge.   Ed Whelan makes the more reasonable argument against her:  the nine Justices all agreed that the 2nd’s summary dismissal of the case was unwarranted.

President Barack Obama announces federal appeals court judge Sonia Sotomayor, right, as his nominee for the Supreme Court, Tuesday, May 26, 2009, in an East Room ceremony of the White House in Washington. (AP Photo/Alex Brandon)

Kevin Drum notes that he’s already tired of the “kabuki” that has emerged in reaction to the nomination of Sonia Sotomayor to the Supreme Court.

I both agree that the process is predictable and tedious and that Sotomayor would seem obviously qualified for confirmation.  I would quibble, however, with this:

Conservatives, who seem constitutionally unable of viewing any non-white nominee as anything other than identity politics run wild, have already decided she’s just a crass affirmative action hire. Out of a decade-long appelate court career, the only opinion of hers they seem to have heard of, or care about, is Ricci.  And unlike all the middle class white guys on the court, who are apparently paragons of race-blind rationality, they’re convinced that she’s just naturally going to be incapable of judging any case before her as anything other than a woman and a Hispanic.

First, that she’s Hispanic and female were undeniably major factors in elevating her to the top of the short list.

Second, liberals/progressives are cheering the First Hispanic Justice angle, with Chuck Schumer openly daring Republicans to oppose the First Hispanic Justice and risk backlash from the fastest growing voting demographic.

Third, while I don’t recall any such controversy with Sandra Day O’Connor (who, frankly, was not particularly well qualified) it was widely assumed and continues to be argued to this day that Clarence Thomas (who was objectively qualified for the Court) was a token hire.

Fourth, Sotomayor has issued public statements that, while arguably true, are racially inflammatory and that would be much more controversial still if uttered by a white judge nominated for the Supreme Court.  I just happen to agree with Daniel Larison that the solution to this double standard is to quit applying it to whites rather than start applying it to non-whites.

Fifth, it’s hard to stop the kabuki once it starts.  Its modern incarnation began with Robert Bork, an obviously brilliant but undeniably controversial and arguably kooky appointment.  It quickly became standardized and applied to all but the most tepid appointments.  It took months to confirm John Roberts and Samuel Alito, despite their stellar qualifications and moderate temperaments.

Sixth and finally, while tedious and absurd when faced with an obviously qualified appointment who will no doubt be confirmed in the end, there has been a realization in recent years of just how important these appointments are.  Supreme Court justices stay on the bench years, even decades, after the presidents who appointed them leave office and decide the most portentious political issues.  I would prefer that the scrutiny be more sober and less theatrical but scrutiny itself is quite warranted.

UPDATE: Matt Yglesias chimes in:

And then there’s Ramesh Ponnuru who dubs her Obama’s Miers. Because, I guess, the qualifications Sotomayor holds only count as qualifications if you’re a white dude.

Now, I think Sotomayor looks qualified (I frankly don’t follow the lower courts enough to have a well-formed opinion) and earned plenty of ire from my side of the aisle for arguing Miers was not.  But I’m getting really tired of diplomas earned in ones 20s being cited as evidence that middle-aged people are/are not worthy of some senior position.  Surely, there are people who graduated SMU’s fine law school who are smart enough to serve on the Supreme Court.  Just as surely, there are people who Peter Principled once on an appellate court.  And, while I don’t think Miers by any means distinguished herself in the role, the list of White House Counsels includes some damned smart lawyers.  Why, many of them went to Harvard and Yale!

Dahlia Lithwick takes to the pages of FireDogLake to explain why, in her view, liberals are much less excited about the Supreme Court than conservatives:

My own impression, having covered the past two presidential elections is that most liberals simply don’t vote with the composition of the Supreme Court in mind at all, or that it ranks somewhere in their top 14 concerns, but rarely breaks into the top five. There is just no analogue on the political left for the focused, court-obsessed judge-watchers who populate the conservative base and holler “activist judge” every time a decision comes down with which they disagree.

I have some theories for why this is the case but look forward to yours: What the Supreme Court does is so removed from public life; the lag time between a court decision and its effects on the ground can be enormous; the court’s work is shrouded in jargon and secrecy; and despite the advancing years of the court’s liberal wing, it’s very hard to scare voters into caring about the Supreme Court with an election ad that warns:

Some justices may leave the court at some point soon. Some other justices may replace them and those new justices may decide some cases we don’t know about yet. And that might be bad for America.

[...]

The reason the conservative base is so very angry at the judiciary – decades of Republican appointees steadfastly but inexplicably refusing to overturn Roe v Wade – is the same reason liberals have become so complacent. We take new justices at their word that they won’t disturb settled precedent. We get sucked into the expert claims that the court decides too few cases (only 67 this term!) to really matter, or the characterization of those decisions as humble or narrow, even when many are nothing of the sort. We secretly believe that no matter who departs the court and who replaces them, the Warren-era achievements are somehow frozen in constitutional amber.

That strikes me as more-or-less right. I’d add, though, that while the Court might be getting more ideologically conservative, the law and society isn’t. Beyond that, while Anthony Kennedy, the current “swing Justice,” is more conservative than his predecessor, Sandra Day O’Connor, centrist conservative judges tend to be extremely deferential to precedent.

There’s simply no analog to the great civil rights controversies of the 1950s and 1960s where the Supreme Court can force the hand of the culture. The closest thing is probably gay rights which, frankly, just isn’t that close.

Arguably, the most salient judicial “voting issue” for liberals is abortion. That issue reflects both the above trends well. Whatever Kennedy’s views on the merits of the Roe precedent, he now views it as settled law, meaning the arguments are now on the very margins of the debate (late term abortion, the precise point of “viability,” and the like). Further, even if, say, a John Paul Stevens were replaced by a Samuel Alito type — the furthest right Justice one can imagine a very Democratic Senate confirming — and they somehow decided to overturn Roe’s Constitutional right to abortion, we wouldn’t return to anything like a pre-Roe status quo.

Terrorist suspects detained at Guantánamo Bay (and presumably, anyplace else under American jurisdiction) have the right to file habeus corpus petitions in U.S. civilian courts the Supreme Court ruled today in a 5-4 decision. Further, Congress could not pass a law waiving these protections absent rebellion or invasion.

Justices Rule Terror Suspects Can Appeal in Civilian Courts (David Stout, NYT)

“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony M. Kennedy wrote for the court.

The ruling came in the latest battle between the executive branch, Congress and the courts over how to cope with dangers to the country in the post-9/11 world. Although there have been enough rulings addressing that issue to confuse all but the most diligent scholars, this latest decision, in Boumediene v. Bush, No. 06-1195, may be studied for years to come.

The justices rejected the administration’s argument that the individual protections provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 were more than adequate. “The costs of delay can no longer be borne by those who are held in custody,” Justice Kennedy wrote, assuming the pivotal rule that some court-watchers had foreseen. Joining Justice Kennedy’s opinion were Justices John Paul Stevens, Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.

The dissenters were Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas, generally considered the conservative wing on the court.

The 2006 Military Commission Act stripped the federal courts of jurisdiction to hear habeas corpus petitions filed by detainees challenging the bases for their confinement. That law was upheld by the United States Court of Appeals for the District of Columbia Circuit in February 2007.

[...]

The detainees at the center of the case decided on Thursday are not all typical of the people confined at Guantánamo. True, the majority were captured in Afghanistan or Pakistan. But the man who gave the case its title, Lakhdar Boumediene, is one of six Algerians who immigrated to Bosnia in the 1990’s and were legal residents there. They were arrested by Bosnian police within weeks of the Sept. 11 attacks on suspicion of plotting to attack the United States embassy in Sarajevo — “plucked from their homes, from their wives and children,” as their lawyer, Seth P. Waxman, a former solicitor general put it in the argument before the justices on Dec. 5. The Supreme Court of Bosnia and Herzegovina ordered them released three months later for lack of evidence, whereupon the Bosnian police seized them and turned them over to the United States military, which sent them to Guantánamo.

High Court ruling may delay war crimes trials (Mark Sherman, AP)
es were in the majority.

Justice Anthony Kennedy, writing for the court, said, “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.” Kennedy said federal judges could ultimately order some detainees to be released, but that such orders would depend on security concerns and other circumstances.

[...]

It was not immediately clear whether this ruling, unlike the first two, would lead to prompt hearings for the detainees, some of whom have been held more than 6 years. Roughly 270 men remain at the island prison, classified as enemy combatants and held on suspicion of terrorism or links to al-Qaida and the Taliban.

The ruling could resurrect many detainee lawsuits that federal judges in Washington put on hold pending the outcome of the high court case. The decision sent judges, law clerks and court administrators scrambling to read Kennedy’s 70-page opinion and figure out how to proceed. Chief Judge Royce C. Lamberth said he would call a special meeting of federal judges to address how to handle the cases.

The decision also cast doubt on the future of the military war crimes trials that 19 detainees are facing so far. The Pentagon has said it plans to try as many as 80 men held at Guantanamo. The lawyer for Salim Ahmed Hamdan, Osama bin Laden’s one-time driver, said he will seek dismissal of the charges against Hamdan based on Thursday’s ruling. A military judge had already delayed the trial’s start to await the high court ruling.

[...]

The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is inadequate.

[...]

In dissent, Chief Justice John Roberts criticized his colleagues for striking down what he called “the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.” Justices Samuel Alito, Antonin Scalia and Clarence Thomas also dissented.

Scalia said the nation is “at war with radical Islamists” and that the court’s decision “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

I fear Scalia is right on that score. That’s not, however, sufficient reason to abandon our most fundamental principles.

I’ll withhold final judgment until I’ve had time to read the opinion (which is over 70 pages!) and the dissents. I view this case in a different category than those dealing with U.S. citizens, which I considered slam dunk violations of the Constitution. Foreign nationals, especially those captured abroad, have less protection under the Constitution. Indeed, offhand it seems to me that our treaty obligations (Geneva, etc.) are a better basis for adjudicating these matters than the civil courts.

Lyle Denniston observes,

In a second ruling on habeas, the Court decided unanimously that U.S. citizens held by U.S. military forces in Iraq have a right to file habeas cases, because it does extend to them, but it went on to rule that federal judges do not have any authority to bar the transfer of those individuals to Iraqi authorites to face prosecution or punishment for crimes committed in that country in violation of Iraqi laws.

I was momentarily apoplectic until I re-read it and saw the “U.S. citizens” part. With that modifier, it’s a no-brainer.

Aside from whether the Justices got the law right, Cernig’s public policy take strikes me as quite right:

Some very bad people are likely to walk free along with the innocent because the Bush administration tried to walk around domestic and international principles of law, creating an entirely spurious new designation of “unlawful combatant” so that they could either hise detainees from due process indefinitely or, failing that, conduct kangaroo courts.

If they’d just stuck with the existing definitions, all the Gitmo detainees against whom they could build a real case under the actual rules of law, without torture and without rigging the courts, would have been tried as POW’s already. If found guilty, the death penalty would have been warranted in some cases. I would personally have had no problem with that.

Me either.

Kevin Raybould is more succinct:

If these people are prisoners of war, then treat them as such. If they are not, then they are criminals and should be treated the same as every other criminal in the care of the federal government. Inventing a third class of people that the executive gets to do with as they please cannot be an option under our constitution.

Most excited reactions:

• Damozel: “[A]nyone who can’t decide whether they hate the thought of an Obama presidency more than a McCain presidency needs to think long and hard about the implications of this 5-4 split. Federal judicial protection of individual rights, and individual privacy — and not only those of enemy combatants — are already hanging by a thread.”

• Michelle Malkin: “What’s that sound? The thunder of left-wing lawyers and Gitmo detainees jumping up and down for joy at the Supreme Court’s ruling this morning.”

• John Hawkins: “[T]his decision has nothing to do with the Constitution and everything to do with liberalism’s unending sympathy towards any enemy of our country.”

• Debbie Schlussel: “[T]he Supreme Court has announced to world that every terrorist, no matter how bent on destroying America–and regardless of whether or not the terrorist had any contact with American soil–now has a right to their own three ring court circus, MC’d by some ringmaster clone of Judge Ito and attended by his/her posse of O.J. jury replications”

Other reax (lawyers up front):

• Orin Kerr: “Nothing I’ve seen in the Court’s opinion so far is at all surprising, and it’s a big defeat for the Bush Administration.”

• Steve Bainbridge: “I take Scalia’s point and have some sympathy for the position. After all, the Constitution is not a suicide pact. Yet, I am reminded of Benjamin Franklin’s aphorism that those who give up an essential liberty for temporary security deserve neither liberty or security.” He’s also interested that SCOTUS simply ignored Congress’ taking away their jurisdiction on this — which the Constitution gives them a plenary right to do.

• Marty Lederman: “[B]ecause the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.”

• Armando: “Apparently, the Supreme Court agreed with me and disagreed with the DC Circuit Court of Appeals.”

• Ed Morrissey: “It seems absurd to apply criminal law to unlawful combatants captured during hostilities abroad. Will they require a Miranda reading, too?”

• Sean Hackbarth: “From my plain reading of the constitution I don’t see that it applies to non-U.S. citizens. . . . I think war-fighting has already gotten too legalistic with military leaders asking lawyers to approve actions to cover themselves.”

• John Cole: “ACTIVIST JUDGES! ACTIVIST JUDGES!”

• Matt Yglesias: “I bet all those dirty hippies who said that John Roberts would be another Scalia feel sorry now completely vindicated.”

• Radley Balko: “I guess the only question now is whether the administration feels it’s actually obligated to abide by the decision, or if it believes the president’s absolute power in wartime means that in addition to ignoring Congress, he can ignore the Supreme Court, too.”

memeorandum, doubtless, has even more links.

The Supreme Court today upheld Indiana’s law requiring voters to show picture ID.

The Supreme Court ruled Monday that states can require voters to produce photo identification without violating their constitutional rights, validating Republican-inspired voter ID laws.

In a splintered 6-3 ruling, the court upheld Indiana’s strict photo ID requirement, which Democrats and civil rights groups said would deter poor, older and minority voters from casting ballots. Its backers said it was needed to prevent fraud.

It was the most important voting rights case since the Bush v. Gore dispute that sealed the 2000 election for George W. Bush. But the voter ID ruling lacked the conservative-liberal split that marked the 2000 case.

The law “is amply justified by the valid interest in protecting ‘the integrity and reliability of the electoral process,’” Justice John Paul Stevens said in an opinion that was joined by Chief Justice John Roberts and Anthony Kennedy. Stevens was a dissenter in Bush v. Gore in 2000. Justices Samuel Alito, Antonin Scalia and Clarence Thomas also agreed with the outcome, but wrote separately. Justices Stephen Breyer, Ruth Bader Ginsburg and David Souter dissented, just as they did in 2000.

More than 20 states require some form of identification at the polls. Courts have upheld voter ID laws in Arizona, Georgia and Michigan, but struck down Missouri’s. Monday’s decision comes a week before Indiana’s presidential primary.

[...]

Ken Falk, legal director of the American Civil Liberties Union of Indiana, said he hadn’t reviewed the decision, but he was “extremely disappointed” by it. Falk has said voter ID laws inhibit voting, and a person’s right to vote “is the most important right.” The ACLU brought the case on behalf of Indiana voters.

This seems like a no-brainer, really. Yes, voting is a fundamental right. No, it’s not absolute. Most states require advanced registration, proof of address, and make other restrictions to reasonably ensure that only eligible people vote and that no one can vote more than once.

Photo identification is necessary to do everything from driving to cashing a check to getting a job. It’s simply not an onerous requirement to exercise the franchise.

It is, however, problematic for those who think cameras steal the soul. And vampires. (Or is that mirrors?)

Lyle Denniston has a thorough discussion of the various opinions in the case. He observes,

The voter ID ruling may turn out to be a significant victory for Republicans at election time, since the requirement for proof of identification is likely to fall most heavily on voters long assumed to be identified with the Democrats — particularly, minority and poor voters. The GOP for years has been actively pursuing a campaign against what it calls “voter fraud,” and the Court’s ruling Monday appears to validate that effort, at least in part. The main opinion said states have a valid interest in preventing voting by those not entitled to do so, even if there is no specific proof of that kind of fraud in the state.

While the Court’s main opinion said it was “fair to infer that partisan considerations may have played a significant role” in enacting the photo ID law, it went on to say that that law was neutral in its application and was adequately supported by the justifications the state had offered.

Presumably, the poor are less likely to have cars and, therefore, drivers’ licenses. One would think, though, that they’d need photo ID to get on the payroll at work. Or, as the case might be, to draw welfare benefits.

James Oliphant points out that,

Stevens noted … the failure of opponents to demonstrate the burden that would be placed on elderly and minority groups. The record in the case was almost devoid of any pure numbers indicating the percentage of voters in Indiana who lacked an ID that would allow them to vote, a point underscored at oral argument.

Commenters nonetheless believe we’re on the brink of a plutocracy, where the poor are disenfranchised and Republican rule is permanent.

Rick Hasen, who filed an amicus brief for the losing side, offers detailed thoughts as well, mostly on the finer points of judicial reasoning rather than on policy.

White House political adviser Karl Rove has announced his resignation, effective August 31st:

“I just think it’s time,” Rove told the Wall Street Journal. “There’s always something that can keep you here, and as much as I’d like to be here, I’ve got to do this for the sake of my family.”

He told the newspaper that he would leave Washington to return to Texas and that he had first suggested the idea of leaving a year ago. However a series of problems for the Bush administration, starting when the Democrats took control of Congress and then as immigration and the Iraq war topped the agenda, made the enormously powerful Rove stay on.

But one of President Bush’s most trusted advisors claimed his hand was forced when White House Chief of Staff Joshua Bolten announced that any senior staff that were working past Labor Day (September 3) would be expected to stay on until the end of Bush’s term in January 2007.

To paraphrase Freud, sometimes political figures “resign to spend more time with their family” because they really want to spend more time with their family. Whether or not that’s actually the case with Rove is anyone’s guess, however.

UPDATE (James Joyner): The WSJ story is here. CNN paraphrased it almost in its entirety. This, however, is interesting:

In the interview, Mr. Rove said he expects Democrats to give the 2008 presidential nomination to Sen. Hillary Rodham Clinton, whom he described as “a tough, tenacious, fatally flawed candidate.” He also said Republicans have “a very good chance” to hold onto the White House in next year’s elections.

Mr. Rove also said he expects the president’s approval rating to rise again, and that conditions in Iraq will improve as the U.S. military surge continues. He said he expects Democrats to be divided this fall in the battle over warrantless wiretapping, while the budget battle — and a series of presidential vetoes — should help Republicans gain an edge on spending restraint and taxes.

I think Rove’s right on Clinton. Otherwise, though, his public prognostication skills have been really off for a while, despite his having access to the good polls. It’s probably technically true that Bush’s approval numbers and the situation in Iraq will improve; that’s not difficult given the baselines.

Still, as Paul Gigot notes, it’s been quite a ride.

Mr. Rove doesn’t say, though others do, that this timing also allows him to leave on his own terms. He has survived a probe by a remorseless special counsel, and lately a subpoena barrage from Democrats for whom he is the great white whale. He shows notable forbearance in declining to comment on prosecutor Patrick Fitzgerald, who dragged him through five grand jury appearances. He won’t even disclose his legal bills, except to quip that “every one has been paid” and that “it was worth every penny.”

What about those who say he’s leaving to avoid Congressional scrutiny? “I know they’ll say that,” he says, “But I’m not going to stay or leave based on whether it pleases the mob.” He also knows he’ll continue to be a target, even from afar, since belief in his influence over every Administration decision has become, well, faith-based.

“I’m a myth. There’s the Mark of Rove,” he says, with a bemused air. “I read about some of the things I’m supposed to have done, and I have to try not to laugh.” He says the real target is Mr. Bush, whom many Democrats have never accepted as a legitimate president and “never will.”

It is his long and personal relationship with Mr. Bush that has made Mr. Rove arguably the most influential White House aide of modern times. The president calls him to chat about politics on Sunday mornings, and they have a contest to see who can read the most books. (Mr. Rove is winning.) I’ve known Mr. Rove for 19 years and spoken to him hundreds of times. Yet I can’t recall a single instance where he disclosed how his views differed from Mr. Bush’s. Mr. Bolten hasn’t decided on a replacement, and Mr. Rove’s duties may yet be divided up.

Mr. Rove’s political influence has been historic, notwithstanding the rout of 2006. His crucial insight in 2000 was recognizing that Mr. Bush had to be both an alternative to Bill Clinton’s scandalous behavior and “a different kind of Republican.” In 2002, the president’s party gained seats in both the House and Senate in a first midterm election for the first time since 1934.

And in 2004, for only the second time in history, a president won re-election while helping his party gain seats in both houses of Congress; the other time was 1936. Much has been made of John Kerry’s ineptitude, but the senator won some eight million more votes than Al Gore did in 2000, and Mr. Rove claims Democrats outspent Republicans by $148 million thanks to billionaire donations to “527″ committees. Yet amid a difficult war, Mr. Bush won by increasing his own vote by nearly 25% over 2000, winning 81% of U.S. counties. The Rove-Ken Mehlman turnout effort was a spectacular achievement. If it did nothing else, that 2004 victory put John Roberts and Samuel Alito on the Supreme Court.

Unfortunately, the upside of all this has been a virtual inability to govern. How much of that is Rove’s doing, of course, it’s impossible to say.

Politically, it would have been good for the Bush administration had Rove decided his family needed him quite a while back. Bush’s vaunted loyalty was at least understandable in Rove’s case, given that he had guided him through four successful election campaigns, but his divide and conquer style did not serve a wartime president well.

Arlen Specter thinks he was hoodwinked by John Roberts and Samuel Alito during their confirmation hearings. Essentially, they told the Senate that they were very respectful of precedent and Specter thinks their actions on the Court have broken what amounts to a promise.

Specter, the ranking Republican on the Judiciary Committee, who served as chairman during the hearings, said he wants to examine whether Roberts and Alito have “lived up” to their assurances that they would respect legal precedents. Judicial independence is “so important,” Specter said, but an examination could help with future nominations. “I have done a lot of analyzing and have come to the conclusion that these nominees answer just as many questions as they have to.”

Senate Majority Whip Richard J. Durbin (D-Ill.), a Judiciary Committee member who voted against both nominees, said a review “could lead us to have a different approach.” He said senators need to be “more probing” with their questioning of nominees. “Certainly Justice Roberts left a distinct impression of his service as chief justice. And his performance on the court since, I think, has been in conflict with many of the statements he has made privately, as well as to the committee,” said Durbin, who was unaware of Specter’s idea. “They are off to a very disturbing start, these two new justices. I am afraid before long they will call into question some of the most established laws and precedents in our nation.”

Now, aside from impeachment, there’s nothing Specter and Durbin can do about this. The idea that they could be “more probing” and get meaningful answers from prospective Justices is silly. Any nominee worth his salt will decline to make specific assurances on votes, citing “judicial independence.”

Further, vague promises about “strict construction,” “interpreting the Constitution as written,” and “respecting precedent” are meaningless in application. Roberts and Alito have indeed voted to overturn some longstanding precedents. But Alito merely said that, “there needs to be a special justification for overruling a prior precedent.” Do Specter and Durbin really think he didn’t think he had a good reason for ruling as he did in cases overturning precedents?

The Supreme Court today severely weakened a key provision of the McCain-Feingold law.

The Supreme Court loosened restrictions Monday on corporate- and union-funded television ads that air close to elections, weakening a key provision of a landmark campaign finance law. The court, split 5-4, upheld an appeals court ruling that an anti-abortion group should have been allowed to air ads during the final two months before the 2004 elections.

The case involved advertisements that Wisconsin Right to Life was prevented from broadcasting. The ads asked voters to contact the state’s two senators, Democrats Russ Feingold and Herb Kohl, and urge them not to filibuster President Bush’s judicial nominees. Feingold, a co-author of the campaign finance law, was up for re-election in 2004.

The provision in question was aimed at preventing the airing of issue ads that cast candidates in positive or negative lights while stopping short of explicitly calling for their election or defeat. Sponsors of such ads have contended they are exempt from certain limits on contributions in federal elections.

Chief Justice John Roberts, joined by his conservative allies, wrote a majority opinion upholding the appeals court ruling. The majority itself was divided in how far justices were willing to go in allowing issue ads. Three justices, Anthony Kennedy, Antonin Scalia and Clarence Thomas, would have overruled the court’s 2003 decision upholding the constitutionality of the provision. Roberts and Justice Samuel Alito said only that the Wisconsin group’s ads are not the equivalent of explicit campaign ads and are not covered by the court’s 2003 decision.

Roberts has signaled early in his tenure as Chief that he is more interested in crafting the widest possible consensus on the Court than in issuing sweeping decisions. That he was only able to get a bare majority for such a tepid ruling, therefore, would seem to indicate that this was as far-reaching as the Justices were willing to go.

While I’m disappointed, it’s not surprising that the Court didn’t overrule its recent decision upholding the constitutionality of BCRA. Doing so would have undermined the public’s faith, such as it is, that the Court is a group of oracles telling us what the Constitution says rather than a caucus of politicos making public policy based on how many votes they can cobble together.

The Opinion is here in PDF format; no, I haven’t read it yet.

UPDATE: I see Dodd was posting on this decision, along with the “Bong Hits for Jesus” case, as I was writing this post. I’ll leave both up, since they’re complementary rather than redundant.

The Supreme Court has upheld a federal ban on partial birth abortions.

The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench. The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and
President Bush signed into law in 2003 does not violate a woman’s constitutional right to an abortion.

The opponents of the act “have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,” Justice Anthony Kennedy wrote in the majority opinion. The administration defended the law as drawing a bright line between abortion and infanticide.

The decision pitted the court’s conservatives against its liberals, with President Bush’s two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority. Justices
Clarence Thomas and Antonin Scalia also were in the majority.

It was the first time the court banned a specific procedure in a case over how — not whether — to perform an abortion.

This strikes me as a commonsensical decision. Paradoxically, however, the ruling will likely politically disadvantageous to conservatives. It simultaneously takes away the lowest hanging fruit in the abortion debate–only the staunchest abortion fans can side with jamming scissors into a baby’s brain as he’s being delivered–and undermines the “activist judges” argument.

Rudy Giuliani’s judicial appointments while mayor of New York were mostly left-leaning Democrats who don’t love Jesus, reports Ben Smith for The Politico.

When Rudy Giuliani faces Republicans concerned about his support of gay rights and legal abortion, he reassures them that he is a conservative on the decisions that matter most. “I would want judges who are strict constructionists because I am,” he told South Carolina Republicans last month. “Those are the kinds of justices I would appoint — Scalia, Alito and Roberts.”

But most of Giuliani’s judicial appointments during his eight years as mayor of New York were hardly in the model of Chief Justice John Roberts or Samuel Alito — much less aggressive conservatives in the mold of Antonin Scalia.

A Politico review of the 75 judges Giuliani appointed to three of New York state’s lower courts found that Democrats outnumbered Republicans by more than 8 to 1. One of his appointments was an officer of the International Association of Lesbian and Gay Judges. Another ruled that the state law banning liquor sales on Sundays was unconstitutional because it was insufficiently secular. A third, an abortion-rights supporter, later made it to the federal bench in part because New York Sen. Charles E. Schumer, a liberal Democrat, said he liked her ideology.

This might not play well in the Republican primaries. Then again, blue laws have been ruled unconstitutional time and again. And it’s not like state judges are making abortion law in the post-Roe world.

But here’s the key:

When Giuliani took office in 1994, he inherited a system of judicial appointments created by one of his predecessors, Ed Koch, and designed to insulate the courts from political influence. Under the system, the mayor appoints members of an independent panel. Aspiring judges apply to the panel, which recommends three candidates for each vacancy. The mayor chooses among the three.

So, it’s not as if he had free reign.

God has issued more predictions for the coming year, in the person of his messenger Pat Robertson.

In what has become an annual tradition of prognostications, religious broadcaster Pat Robertson said Tuesday God has told him that a terrorist attack on the United States would result in “mass killing” late in 2007. “I’m not necessarily saying it’s going to be nuclear,” he said during his news-and-talk television show “The 700 Club” on the Christian Broadcasting Network. “The Lord didn’t say nuclear. But I do believe it will be something like that.”

Robertson said God told him during a recent prayer retreat that major cities and possibly millions of people will be affected by the attack, which should take place sometime after September.

Robertson said God also told him that the U.S. only feigns friendship with Israel and that U.S. policies are pushing Israel toward “national suicide.”

Robertson suggested in January 2006 that God punished then-Israeli Prime Minister Ariel Sharon with a stroke for ceding Israeli-controlled land to the Palestinians.

The broadcaster predicted in January 2004 that President Bush would easily win re-election. Bush won 51 percent of the vote that fall, beating Democratic Sen. John Kerry of Massachusetts.

In 2005, Robertson predicted that Bush would have victory after victory in his second term. He said
Social Security reform proposals would be approved and Bush would nominate conservative judges to federal courts. Lawmakers confirmed Bush’s 2005 nominations of John Roberts and Samuel Alito to the Supreme Court. But the president’s Social Security initiative was stalled.

“I have a relatively good track record,” he said. “Sometimes I miss.”

You’d think he’d be batting 1.000 given the omniscience of his sources. Then again, any god who would use Pat Robertson as his press secretary has to have a sense of humor.

Related posts below the fold.

Pat Robertson: Muslims Satanic
White House Rebukes Robertson for Sharon Remarks
Who Speaks for the Evangelicals?
Pat Robertson: God Punished Sharon for Giving Up Land
Robertson Called for Assassinations Before
Pat Robertson Advocates Assassination
Rooting Against the Religious Right
Left Aims to Smite Theocracy€™ Movement
Jerry Falwell in Critical Condition
Ralph Reed Eyeing Georgia Governorship, White House
How Powerful is the €˜Religious Right€™?
MAINSTREAMING THE FRINGE
GOD PICKS BUSH
ROBERTSON ON LIMBAUGH
ENDORSEMENTS YOU DON’T WANT
TROLL ALERT
ROBERTSON REDUX
ROBERTSON
PAT ROBERTSON
DIFFERENT GOP?

A three judge panel yesterday struck down McCain-Feingold’s restrictions on issue advocacy ads.

A divided three-judge court ruled yesterday that ads advocating for an issue and mentioning candidates can run during an election, creating a loophole in the law that sought to control the power of big money in elections. In a 2 to 1 ruling, the court found that the government had no compelling justification to regulate television ads such as the ones Wisconsin Right to Life Inc. broadcast in July 2004, which advocated stopping congressional filibusters against President Bush’s judicial nominees.

The ads ran when Sen. Russell Feingold (D-Wis.) was running for reelection and had opposed some of Bush’s nominees. The ads made no mention of Feingold’s record, instead urging Wisconsin residents to call their senators to express their dissatisfaction.

U.S. District Judge Richard J. Leon, joined by U.S. Court of Appeals Judge David B. Sentelle, agreed with Wisconsin Right to Life that ads such as theirs merely advocate a position without trying to criticize the record of a particular candidate. The ads are not targeted “electioneering communications” and should not be burdened by the reporting requirements of the federal campaign finance law, Leon wrote.

[...]

FEC Commissioner David M. Mason said in an interview that the six-member commission has not decided whether to appeal the ruling to the Supreme Court, but he cautioned about predicting what campaign finance limits will govern in the 2008 presidential elections. A similar case involving a Maine group is still to be decided, and the Supreme Court could have a different view. “It’s very unlikely this ruling will affect what the law will be a year from now,” Mason said.

The AP report, though, says “the case automatically heads to the Supreme Court for review.”

Rick Hasen provides an excellent backgrounder. He believes that the replacement of Sandra Day O’Connor on the Supreme Court with Samuel Alito makes it likely that this ruling is upheld and that the “move toward a deregulated campaign finance system continues.”

SCOTUSBlog’s Gretchen Sund provides links to more press coverage, analysis, and documents.

Ed Morrissey provides an interesting lay analysis. A key ‘graph:

It’s not for nothing that many have termed the BCRA the Incumbent Protection Act. The restriction on political speech that keeps groups from buying advertising that names politicians violates the fundamental reason for the First Amendment — to allow Americans to criticize their elected officials. While the court did not recognize the entire egregiousness of this BCRA provision, it did recognize that the idea of never being able to name elected officials in advertising within 60 days of an election regardless of the nature of the reference is a ludicrous standard.

Bill Hobbs terms it “A Half-Victory for Freedom of Speech,” observing that, “The court should have ruled that any restrictions on what any individual or group could say in a campaign ad was anathema to the basic founding principles of America.”

While I agree that the plain language of the First Amendment would lead to that conclusion, lower courts are traditionally bound to defer to the rulings of higher courts (stare decisis) and to defer to both Congress and expert regulation commission such as the FEC. Given that the Supreme Court has recently ruled against the First Amendment Purist objections to BCRA, this panel was constrained to rule in accordance with that precedent. My hope is that Hasen is right with respect to Alito’s presence on the Court.

USA Today’s Joan Biskupic seems genuinely surprised that the appointment of a conservative Chief Justice and conservative Associate Justice to the Supreme Court by an ostensibly conservative president might shift the Court in a rightward direction.

Now, granted, we don’t really know because very few rulings have been handed down since Alito joined the court. But Biskupic can read the tea leaves, most notably oral arguments during which Chief Justice John Roberts and Alito have “added flair to the court’s public sessions and have contrasted sharply with the tentative approach that moderate Justices Sandra Day O’Connor and Anthony Kennedy often took in disputes over abortion, affirmative action and other key issues.”

Considering that Kennedy is still on the court, that’s a rather odd point of comparison. Still, one would expect (and conservatives certainly hope) that Alito would be more conservative than the wishy-washy O’Connor and there’s reason to expect that Roberts will be as conservative as his predecessor, the late William Rehnquist. Then again, O’Connor was a Reagan appointee and disappointed conservatives everywhere. Only time will tell whether Alito and Roberts remain true to their principles or “grow” while in office.

Judicial Watch has investigated the financial records of Judge Anna Diggs Taylor, who last week ruled the NSA electronic surveillance program unconstitutional, may have a conflict of interest.

According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a “recent grant” of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision.

A minor blogswarm is brewing over this, with Greg Tinti making the best case that this is really an issue, noting the outrage over then-Supreme Court nominee Samuel Alito’s relationship to the Vanguard Company.

Still, like Patrick Frey, while I find the reasoning in her opinion in this case strained, to say the least, I don’t see this as a big deal. Federal judges often serve on boards for groups with some public policy advocacy positions. Ruth Bader Ginsburg doesn’t recuse herself from cases involving feminist groups nor did Thurgood Marshall recuse himself from cases argued by his successors at the NAACP Legal Defense Fund.

Judges have ideological biases and there’s not much getting around that. So long as they have no financial stake or otherwise have a personal interest in the outcome of the case, they’re not required to sit on the sidelines. Indeed, it would be difficult to have some high profile cases tried if that were the case, given that most federal judges have had long careers as political animals before and sometimes during their tenures.

The Supreme Court today upheld Kansas’ death penalty law, affirming that states have substantial latitude in determining how to apply capital punishment.

New Supreme Court Justice Samuel Alito broke a tie Monday to rule that Kansas’ death penalty law is constitutional. By a 5-to-4 vote, the justices said the Kansas Supreme Court incorrectly interpreted the Eighth Amendment’s protection against cruel and unusual punishment to strike down the state’s death penalty statute.

The Kansas court said the state’s death penalty law improperly forced jurors to impose a capital sentence even if they believed that the prosecution and defense evidence were equal in weight. But the justices disagreed. Writing for the majority, Justice Clarence Thomas disputed the claim by critics that the law created “a general presumption in favor of the death penalty in the state of Kansas.”

The ruling affirms the court’s long-held position that states should determine how juries weigh factors presented by the prosecution and defense in capital cases. Fifteen states filed friend-of-the-court briefs, predicting that a ruling in convicted murderer Michael Lee Marsh’s favor would have required states with capital punishment to set up systems for juries to weigh evidence at sentencing.

Updates to follow once the opinion is released.