More resources for researching Sotomayor

The Library of Congress has just created a website dedicated to information about the Sonia Sotomayor. SCOTUSBLOG also contains interesting posts discussing Sotomayor's record.

To learn more about Ricci v. DeStefano and more...

The New York Times has compiled a fairly comprehensive collection of Sotomayor's cases and writings. Judgepedia has compiled summaries on the opinions written by Sotomayor that were overruled. Click here to read: "Discrimination Case Could Pose Problems for Sotomayor."

Also, the following articles or speech transcripts are available to students and faculty on HeinOnline, Lexis, or Westlaw:

• Hon. Sonia Sotomayor, Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation: Judge Mario G. Olmos Memorial Lecture: Latina Judge’s Voice, 13 La Raza L.J. 87 (2002).


• Hon. Sonia Sotomayor and Nicole A. Gordon, Returning Majesty To The Law and Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35 (1996).


• Hon. Sonia Sotomayor, Tribute to John Sexton [comments] 60 N.Y.U. Ann. Surv. Am. L. 23 (2004-2005).
  

Complimentary blind spots

A few years back, I was listening to a colleague describe a recent trip he had taken to an island somewhere in the Caribbean. The food was delicious, the resort elegant, and the diving was suburb. But my friend expressed reservations about the natives. He said that the island people were poor, which was true, and that they were also filthy. Surprised that my open minded and normally generous colleague would make this statement, I asked on what he based this assessment. He replied that all over the island natives had left trash piled in front of and around their homes. I asked whether the island government provided its poorer residents with a trash service. He said no. I asked if the natives had cars or trucks to haul trash to a dump. Most did not. My friend got my point.

A person’s background informs his or her worldview. Although people generally can overcome prejudice when unexamined beliefs are reflected back to them through another’s eyes, all people still have blind spots. As my friend did, people make assumptions, sometimes without knowing that they’ve missed entirely facts that would have led them to form another conclusion.

The impact of a person’s upbringing and personal experience on his or her beliefs is not seriously disputed. Therefore, opponents of planned Supreme Court diversity argue instead that judges, by embracing a strict constructionist philosophy, can arrive at gender or race or anything-you-like blind decisions. See e.g., Ruth Marcus, May 13, 2009. To those opposed to selecting by design a woman justice to replace Souter, picking a woman or a Hispanic isn’t necessary. If a woman happens to be the best candidate fine, but through clear legal thinking, a group of white men can represent sufficiently the viewpoint of the 51% of our population that is female and various minorities to boot (not represent in the legislative sense, but rather approach legal analysis and debate from multiple perspectives so that all meanings that can reasonably be construed from a legal text are explored).

In his May 27, 2009 op-ed, George Will argues that justices should adopt the “jurisprudential doctrine…expressed by a certain Illinois state legislator [Obama] in a 2001 radio interview: ‘The Constitution is a charter of negative liberties. . . . It says what the federal government can't do to you, but it doesn't say what the federal government or the state government must do on your behalf’”, instead of engaging in judicial activism—something Will apparently believes Sonia Sotomayor will do if her appointment is confirmed. Moreover, Will alleges that Sotomayor will adopt what he terms “the Thurgood Marshall doctrine: ‘You do what you think is right and let the law catch up.’” He implies that Sotomayor, because of her background, gender, race, or liberal bent, will act partially and improperly when adjudicating a case.

But Will and others are confusing issues. Strict construction and judicial activism are not functions of a justice’s race, gender, or political affiliations. Anyone can engage in either activity, properly or not. Strict construction, to the extent it has any merit, is essentially a doctrine favoring constitutional interpretations that do not expand the scope of governmental powers in relation to retained state and individual rights. This is not a radical idea. But it does not follow necessarily that justices should never act to protect individual rights from prejudicial government action—even if it means holding a statute unconstitutional. After all, judicial review has been widely accepted ever since Marbury v. Madison.

On the flip side, Will is right. Justices should not for personal reasons hold a statute unconstitutional without legal cause. This would be judicial activism at its worst. But his jab about the “Thurgood Marshall Doctrine” ignores the reality that before and during Justice Marshall’s life African American defendants experienced “robbery trials that lasted less than fifteen minutes [and t]he best a defense lawyer could often do was to make sure that the defendant had a pregnant wife.” Deborah L. Rhode, Letting the Law Catch Up 44 Stan. L. Rev. 1259, 1260-1261 (1992). African Americans used separate bathrooms and rode in the back of the bus. Somewhere along the way, our court and legislature failed to recognize timely injustice.

“Nearly everyone thinks that judges should sometimes invalidate unconstitutional laws.” Randy Barnett, Constitutional Cliches, 36 Cap. U.L. Rev. 493,495 (2008)(emphasis in original). Some statutes should be held unconstitutional. Most people do not feel Brown v. Board of Education was decided wrongly, for example. It’s just in grayer areas that people point fingers and call justices activists because an opinion they decided is not to the people’s liking. But this does not alter what the correct inquiry should be—did the Court get it right?

Perhaps some judges are like a colleague of Justice Frankfurter—“the kind of man whom experience passed through without stopping,” Id. at 1261, but most people are to some extent the sum of their experiences. As Ginsburg said in a recent interview, a woman would not ask, as a male justice had, whether forcing a twelve year old girl to undergo a strip search at school resulted in any harm. See Marcus. Maybe Korematsu v. U.S., 323 U.S. 214 (1944) would have been decided differently if the bench had included an Asian American or other persons with firsthand experience with racism and oppression. And the Court may have found discrimination in Feeney v. Personnel Administrator of Massachusetts, 442 U.S. 256 (1979), which held that a veteran’s employment preference plan did not discriminate unfairly against women because no harm was intended. Women and minorities know firsthand that discriminatory acts have often been characterized as being for the good of the subjugated class.

It is important to ask whether a potential justice, like Sotomayor, will decide cases properly; neither expanding improperly government’s powers nor allowing statutory requirements to supplant Constitutional liberties. And if her jurisprudence proves unsound, as some have alleged in relation to the Ricci case in particular, maybe she is not right for the job (although her record generally appears sound). But Sotomayor’s assertion (taken out of context) that as a Latina woman she might decide certain cases more wisely than a person without the benefit of her life experiences should not be a deal breaker.

Justice Scalia has explained statutory and constitutional construction well: “[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.” Antonin Scalia as quoted in Barnett, supra, at 499-500(citation omitted). But the Court is much more likely to comprehend fully and fairly texts, and decide cases correctly, if it is composed of a diverse group of justices with complimentary blind spots.

How to protect, or not, national security.

Presidents have long sought to block executive branch employee access to Congress’s ear. See The Whistleblower Protection Enhancement Act of 2009: Appearing Before the House Committee on Oversight and Government Reform, 111th Cong. (2009)(Statement by Louis Fischer, Specialist in Constitutional Law, Law Library of the Library of Congress). In their day, both Roosevelt and Taft threatened to fire any agency employee who disclosed information to Congress directly, and not through his or her agency head. See Id. More recently, Ronald Reagan made agency employee security clearances contingent on employees signing nondisclosure agreements. See Id. And because confidential information is, according to the executive primacy argument, in the sole purview of the executive branch, whistleblower protections do and should not cover employees seeking to blow the whistle on executive branch activities tied to national security.

Ensuing legal battles over national security whistleblowing have turned on whether the president has plenary power over international affairs, and thus national security information, or shares responsibility for national security matters with Congress. See Id. Under Bush, for example, the Justice Department asserted that “pending national security whistleblower legislation ‘constitute[d] an unconstitutional interference with the President’s constitutional responsibilities respecting national security and foreign affairs.” Id at 18 (citation omitted). Others, like Fischer, infra, argue that Congress, like the president, is constitutionally required to oversee national security issues and act as a check on executive abuses of power. See generally, Id.

In the end, the relevant question is whether more honesty and competence in the executive branch or greater control over information flow from the executive branch will better protect our national interests.

We don't yet have an answer to these questions, but on February 9, 2009, the saga continued when Senator Daniel Akaka, a democrat from Hawaii, introduced S. 372 in order to expand federal whistleblower protections. A month later, on March 12, 2009, Representative Christopher Van Hollen, a democrat from Maryland, introduced a related bill, H.R. 1507, the Whistleblower Protection Enhancement Act of 2009. H.R. 1507, if passed, would amend current federal law, in part, by expanding what constitutes a protected disclosure.

Of interest here is that H.R. 1507 prohibits “implement[ing] or enforce[ing] any nondisclosure policy, form, or agreement, if such policy, form, or agreement does not contain the following statement: ‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United States Code (governing disclosures to Congress by members of the military); section 2302(b)(8) of title 5, United States Code (governing disclosures of illegality, waste, fraud, abuse, or public health or safety threats); title VI of the National Security Act of 1947 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosures that could compromise national security, including sections 641, 793, 794, 798, and 952 of title 18, United States Code, and section 4(b) of the Subversive Activities Control Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by such Executive order and such statutory provisions are incorporated into this agreement and are controlling.’” H.R. 1507, 111th Cong. (2009).

Will this bill, and its expanded whistleblower protections, pass? Find out by tracking H.R. 1507 on OpenCongress--a great tool for staying up-to-date on any current bill.

State v. Weaver -or- Security v. Privacy

A recent ruling by the Court of Appeals for the State of New York highlights the law's ongoing efforts to balance security and privacy interests in a world of ever-increasing technological innovation. In State v. Weaver, police, without a warrant, surrpetitiously attached a GPS tracking device to the undercarriage of Mr. Weaver's van. The device was used to track the movements of the van for a period of 65 days. The majority of a divided court determined that the use of a GPS device without a warrant constituted an illegal search and ordered that the evidence gathered using the device be excluded. The majority decision was based on New York's state constitution, as the U.S. Supreme Court has yet to rule on the use of GPS devices for tracking purposes. The opinion is here. An article discussing the decision is here.

3 Strikes and You're...Off the Internet?

An interesting proposal aimed at curbing Internet piracy is making its way through the French legislature. The plan includes a "three strikes" provision that would permit the French government to revoke an individual's Internet access after three accusations of copyright infringement. Ed Felten of Princeton University responded with a tongue-in-cheek proposal of his own.

EDIT: Here's another article about the French three-strikes law from NPR's website.

Condolences

The UDM Law community is saddened by the the passing of longtime scholar, Father David C. Bayne S.J. He passed away on April 8, 2009. Father Bayne's legal scholarship spanned six decades and included a stint on the University of Detroit Law School faculty. He also served as the Dean of the U.D. Law School from 1958-1960. Father Bayne was recognized as a leading authority in the fields of corporate control and securities regulation. He will be greatly missed.

Selecting a new justice.

For those of you following the selection process for Souter's replacement, here is an interesting opinion piece on why it is so important that Obama selects a woman. And another article discussing the importance of nominating a Hispanic to the High Court.

What is the Congressional Research Service (“CRS”) and why is it in the news?

Since people in the news have been talking about CRS recently, I thought I’d pull together some info about the service.

What is CRS?

In 1914, Wisconsin Senator Robert LaFollette and Representative John M. Nelson pushed Congress to include in the “Legislative, Executive, and Judicial Appropriations Act” a provision that would establish, as a division of the Library of Congress, a legislative reference service. See Ida Brudnick, The Congressional Research Service and the American Legislative Process (CRS, Order Code RL33471, 2008). The Wisconsin Congressmen succeeded; President Wilson signed the bill into law; and the Legislative Reference Service (“LRS”) was in business. Several years later, Congress permanently authorized the service as part of the “Legislative Restructuring Act of 1946.” See Id citing ch. 753, title II, sec. 203, August 2, 1946, 60 Stat. 836. CRS did not acquire its current name, however, until 1970.

In 1970, in an effort to reorganize yet again, the 91st Congress passed H.R. 17654, and the Legislative Reorganization Act of 1970 became law. See H.R. Rep. No. 91-1215. “Provid[ing] Congress with new sources of information and research, including development of an automatic data processing system [and] expand[ing] the Legislative Reference Service into a Congressional Research Service” was a stated purpose of the legislation. Id. Today CRS is a respected nonpartisan policy research service to Congress. And CRS’s raison d’etre? According to the U.S. Court of Appeals, D.C. Circuit, “to serve Congress.” Keefe v. Library of Congress, 777 F.2d 1573, 1577 (1985).

For this reason, only Congress has access to CRS reports. And only Congress can decide to release a report. As a result, there is no consistent, reliable system for releasing CRS reports to the public. And many never see the light of day.

So what’s the fuss?

CRS reports are really good tools for researchers, policy wonks, and lawyers. The reports cover an unbelievably wide assortment of topics ranging from nuclear proliferation to poverty to, well, CRS itself. And taxpayers foot the bill.
It is this funding mechanism that has motivated various groups, such as the Center for Democracy and Technology through its OpenCRS project and OpenTheGovernment.org, and certain members of Congress, to fight for free access to CRS reports for the general public. They have been fighting this fight for years without success, and many reports have yet to see the light of day.

Why’s it in the news now?

Proponents of open government may soon succeed. Recently, Wikileaks posted on its site over 6,000 CRS reports. But the end of April, Joseph Lieberman (ID-CT) and Senator John McCain (R-AZ) introduced S. Res. 118, which, if adopted, would provide the public with access to CRS publications online.

From the Even-a-Blind-Sow-Finds-An-Acorn-Once-In-a-While Department:

Murphy is pleased to provide an update on the most recent Murphy’s Law newsletter. Several media outlets, here, here, and here, ran articles last week discussing the government’s efforts to avoid disclosing the substance of the Anti-Counterfeiting Trade Agreement (ACTA), a pact it is currently negotiating with several foreign nations. This is relevant to the Murphy’s Law newsletter for two reasons. First, prospects for the open and transparent government allegedly favored by President Obama are looking increasingly grim, as government lawyers continue to stonewall FOIA requests. And second, based on available information about ACTA, some have speculated that an Internet section included in the pact could be used by the big content industries to further stifle competition and increase their control over content. A summary of the ACTA negotiations produced by the Office of the United States Trade Representative can be found here.

Welcome

Welcome to the University of Detroit Mercy Law Library's new blog. On this blog, we will discuss interesting legal issues and current legal news. Check back soon!