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Obama’s choices: Gird your loins

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By Michelle Malkin  •  May 1, 2009 09:13 AM

Conservatives in Washington are gearing up for the SCOTUS battle. My legal sources have compiled sketches of Obama’s top three likely picks and their records. Gird your loins:

Elena Kagan

“Dean Kagan’s nomination to the Supreme Court would be concerning given her complete lack of judicial or appellate experience. She has never been a judge or even argued a case in a court of appeals. It is difficult to see how her experience fundraising for Harvard Law School qualifies her for a seat on the Nation’s high court.

-Dean Kagan has taken positions that are disturbingly out of the mainstream. For example, driven by her view that the “don’t ask; don’t tell” policy adopted by a Democrat Congress and President Clinton is “a profound wrong–a moral injustice of the first order,” she argued that it violates the First Amendment for the United States to withhold funds from colleges that ban the military from recruiting on campus. The Supreme Court unanimously rejected this view.

-It is also unclear that a Justice Kagan would be an adequately independent check on executive excesses. She has argued in favor of greatly enhanced presidential control over the bureaucracy, which is concerning in light of President Obama’s unprecedented centralization of power in the White House.

-Dean Kagan has argued that nominees to the Supreme Court should undergo a searching inquiry into the nominee’s substantive views of the law, and should comment particular issues. If nominated, it will be interesting to see whether Dean Kagan remains faithful to this prescription in answering the Committee’s questions.”

Sonia Sotomayor

“Judge Sotomayor’s nomination to the Supreme Court would be very concerning given her hard-left record on the Court of Appeals, where she is recognized by practitioners as one of the more liberal judges.

-Judge Sotomayor’s personal views may cloud her jurisprudence. As Judge Sotomayor explained in a 2002 speech at Berkeley, she believes it is appropriate for a judge to consider their “experiences as women and people of color” in their decisionmaking, which she believes should “affect our decisions.”

-Only just recently, in Ricci v. DeStefano, Judge Sotomayor was chastised by fellow Clinton-appointee Jose Cabranes for going to extraordinary lengths to dispense with claims of unfair treatment raised by firefighters. Judge Sotomayor’s panel heard a case raising important questions under Title VII and equal protection law, but attempted to dispose of the firefighter’s arguments in a summary order, until called out by Judge Cabranes. The Supreme Court has agreed to review the case.

-Substantial questions also persist regarding Judge Sotomayor’s temperament and disposition to be a Supreme Court justice. Lawyers who have appeared before her have described her as a “bully” who “does not have a very good temperament,” and who “abuses lawyers” with “inappropriate outbursts.”

Diane Wood


-If nominated to the Supreme Court, Judge Wood will have some substantial questions to answer regarding her judicial philosophy based on her work as a circuit court judge.

Judge Wood’s judicial views have on occasion been far outside mainstream legal thought and appear driven by her personal policy views. In NOW v. Scheidler, she wrote an opinion applying RICO – a statute designed for mob prosecutions – to prevent pro-life activists from engaging in protests. The Supreme Court reversed with Justices Ginsburg’s and Breyer’s concurrence. NOW v. Scheidler, 537 U.S. 393, 402 (2003).

-Judge Wood has betrayed a consistent hostility to religious litigants and religious interests. For example, Christian Legal Soc’y v. Walker, 453 F.3d 853, 867 (7th Cir. 2006), she would have voted to allow a public university to revoke the student organization charter of the Christian Legal Society because it declined to extend membership to homosexuals.

She also authored an opinion refusing to allow prisons to require inmate participation in drug rehabilitation programs that used “explicit religious content,” even where such programs were the only ones available, effectively allowing inmates to refuse treatment entirely. Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996).”

***

Ed Morrissey: “After the dust settles, the court will be in exactly the same position as it is now, but in the meantime the GOP will have had an opportunity to show Obama as no post-partisan moderate but as a liberal idealogue. Elections do have consequences — and so do appointments.”

Indeed.

William Jacobson in the Green Room: “…ironically, Specter’s defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.”

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