hunter of justice

BDSM case goes to Supreme Court

by guest blogger Harper Jean Tobin

The US Supreme Court recently agreed to hear a case involving the seemingly technical but highly important question of when a criminal conviction can be overturned based on the possibility that it was based on conduct that occurred before any law made it illegal. While the case is already generating headlines, you are not likely to hear a great deal about the Ex Post Facto Clause issue at the heart of the appeal. Instead, media coverage has and presumably will continue to focus on the involvement of both the defendant and the complainant in the case in the BDSM subculture.

The prosecution and conviction in United States v. Marcus shocked many people, not least members of the BDSM (bondage/discipline, domination/submission, and sadomasochism) community, who alternately condemned the defendant for violating the moral standards of the community and worried that they too could be at risk. Glenn Marcus and the woman identified in court records only as Jodi met in 1998 and began what the prosecution conceded was initially a consensual “Master/slave” relationship. A year later, however (the State contended), the relationship became non-consensual because of Marcus’s cruelty and threats, and Jodi was blackmailed into remaining in the relationship by his threats of showing explicit photos of their activities to Jodi’s family. Marcus’s defense vigorously contested the charges, which turned on Jodi’s testimony that she withdrew her consent and only continued the relationship out of fear. Marcus was convicted of forced labor and sex trafficking under the Trafficking Victims Protection Act of 2000, based on Marcus’s sexual and BDSM activities with Jodi and on forcing Jodi to work on maintaining his BDSM website.

The Second Circuit overturned Marcus’s convictions (538 F.3d 97), saying that because the government built its case largely on events that occurred before the TVPA’s enactment, and the trial judge failed to instruct the jury on the matter, it was at least possible that the verdict was based conduct that was not a federal crime when it occurred. (Notably, then-Judge Sonia Sotomayor wrote a concurring opinion suggesting that the relevant circuit precedents were at odds with Supreme Court precedent. Sotomayor has now recused herself from the case.) Accordingly, Marcus was entitled to a new trial, focusing exclusively on whether Marcus coerced and abused Jodi in late 2000 and 2001. The Supreme Court will now decide whether a conviction can be reversed based only on a possibility, as opposed to a likelihood, that it was based on pre-enactment conduct, and thus whether the new trial will proceed.  Although it is the Court’s job to focus on the specific legal questions presented to it, some members of the Court will likely be unable to resist delving into the morality and legality of BDSM. The legal arguments and media coverage of the case, therefore, should be digested with the following in mind:

Marcus’s conviction turned on the question of consent. Marcus’s defense has contended throughout that he has been imprisoned for consensual BDSM activities, and that Jodi, on whose testimony the whole case hinged, brought a false case to prosecutors, long after the fact, because of a dispute over pictures of her on Marcus’s website. By contrast, the prosecution contended that this was a case about a relationship that began consensually but turned into something different and criminal. At the urging of the defense, the court’s jury instructions specified that the terms “physical restraint,” “threats of serious harm,” “force” and “coercion” in the federal statute must be interpreted so as to exclude consensual BDSM conduct. 487 F.Supp.2d 289 (E.D.N.Y. 2007). While the very idea of consensual BDSM, and the distinction between a consensual “Master/slave” relationship and actual captivity and abuse, may have been difficult for jurors to comprehend, the jury convicted Marcus in light of these instructions and the trial court found the evidence sufficient to uphold the verdict in light of this interpretation of the law. Marcus has not challenged the sufficiency of the evidence on appeal, and accordingly the factual question of consent is now closed, as far as the courts are concerned.

The most sensationalized facts of the case actually involved consensual activity. Jury instructions notwithstanding, the prosecution and the press certainly capitalized on every available detail to paint a picture of a depraved abuser. In particular, press accounts emphasized that Marcus whipped Jodi, cut the word “slave” onto her stomach with a knife, shaved her head and branded her with his initial. However, Jodi testified and the government conceded that these activities were consensual, occurring before she moved to Maryland to be closer to Marcus and months before she became afraid and wanted to leave him. While cutting and branding may seem extreme to some, there is nothing inherently abusive about these activities. What shows Marcus to be an abuser and a criminal, if that is what he is, is not the physical things he did but that did them through force and coercion rather than mutual consent.

From the start, Marcus crossed lines within the BDSM community. Though Marcus has been publicly defended by personal friends in the BDSM community, the community as a whole has been ambivalent toward the case. Marcus’s approach to M/s relationships, as detailed in the trial record, included notions of “consensual non-consent” and “no-limits submission” that are controversial within the community. That is, Marcus made it known that once a woman had committed to his service, he would ignore her objections to specific activities or requests to leave. According to the trial record, Marcus used threats of blackmail to manipulate Jodi, and at one point instructed Jodi to entice her sister to visit and to drug her so Marcus could rape her (she refused). Some community members have suggested that the Marcus case may illustrate the legal boundaries of responsible BDSM, with “safe, sane and consensual” BDSM clearly protected by the law, and practitioners of “consensual non-consent” acting at their own risk.

The Supreme Court will hear arguments in United States v. Marcus (case no. 08-1341) early next year.

Justice rocks

Justice Sotomayor + (actor) Esai Morales = Salsa!

From last night's benefit for the National Hispanic Foundation for the Arts:

Justice Sotomayor: The reward for suffering fools patiently

The core point in the debate over soon-to-be Justice Sotomayor's confirmation was whether she is a centrist, as virtually her entire body of opinions indicated, or a leftist, as various right-wing Republicans labored mightily to construct.  The truth, of course, (as with breath mints and candy mints) is that she is both. Why? Because this is what happens when the left wing of the Supreme Court consists of centrists.

My bet is that her career as a justice, at least in the early years but perhaps enduringly, will look a lot like that of Justice Ginsburg.  One senses that Sotomayor has clear and strong progressive beliefs, not from the kind of legal trailblazing that Justice Ginsburg did in the 1970s, but from her own personal story and affiliations.  I suspect that she, like Ginsburg, trimmed those sails during the years that she served on the Court of Appeals, given that it would have been impossible for her not to know that if a Democratic president got to appoint the first Hispanic justice, she had the inside track for the nomination. Both women had impeccable precedent-following, fact-limited approaches to appellate judging.  As a justice, Ginsburg has been less a trailblazer than a thoroughly dependable progressive vote, far beyond just women's issues, and one of this Court's anchors of humane jurisprudence, all of which is not bad as legacies go.  But I hope that Sotomayor will be more inclined to swing for the fences now and then.

Sotomayor's confirmation process produced little of any real interest or substance. It did illustrate, however, the idiocy that nominees have to endure.  In honor of her having survived it, therefore, I offer my top 10 list of moments when not laughing, crying or choking must have been tough:

(10) Sen. Coburn: Do you believe that our federal courts enable the federal government to exceed its intended boundaries by interpreting Article I's commerce clause and necessary and proper clause to delegate virtual unlimited authority to the federal government?

(9) Sen. Graham: What is identity politics? ... Do you embrace identity politics?

(8) Sen. Graham: What did September the 11th, 2001, mean to you?

(7) Sen. Coburn: Do you not consider it ironic that the majority of the debate about the 14th Amendment in this country was about the taking of guns from freed slaves? Is that not ironic that we now have some kind of conflict that we're going to say that the whole reason in the debate about the 14th Amendment originated from states taking away the rights of people's fundamental right to defend themselves? Is that not an irony to you?

(6) Sen. Sessions: Aren't you saying there that you expect your background and -- and heritage to influence your decision-making?

(5) Sen.Graham: Now, legal realism, are you familiar with that term?

(4) Sen. Grassley: Do you find it unreasonable that the EPA was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish?

(3) Sen. Graham: From what you read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction?

(2) Sen. Kyl: You've always been able to find a legal basis for every decision that you've rendered as a judge?

(1) Sen. Graham: Do you think you have a temperament problem?

Supreme Court denies cert in school religious club case

In a little-noticed order on the last day of its 2008-2009 term, the Supreme Court denied cert last week in Truth v. Kent School District, a Ninth Circuit case in which a high school religious club sought to register with the school in order to use school facilities. In its opinion (542 F.3d 634, rehearing denied 551 F.3d 850), the Court of Appeals rejected the club's claim that enforcement of an anti-discrimination law constituted religious discrimination. The proposed charter filed by Truth restricted membership to those "complying in good faith with Christian character, Christian speech, Christian behavior and Christian conduct as generally described in the Bible." Voting members also had to sign a "statement of faith" and pledge "acceptance of Jesus Christ as my personal savior."

The school district denied recognition to Truth in part because of the implications of its name that other religions were false and in part because the membership criteria discriminated against non-Christians.  However, the Court of Appeals reversed summary judgment for the district on the ground that there was a triable factual dispute over whether the district consistently applied its anti-discrimination policy to all student clubs equally.

The cert petition filed by Truth challenged the Ninth Circuit's ruling that Truth had no viable claim under the Equal Access [to Schools] Act, absent the possible selective enforcement argument. Truth asserted that under that ruling, "schools are free to discriminate against student religious groups because of their membership criteria." Truth also argued that the Court of Appeals' rejection of its expressive association claim failed to properly apply Boy Scouts v. Dale.

Denials of certiorari in and of themselves do not create precedent, so one should not read too much into this one.  It does, however, seem to bode well for the defendants in Christian Legal Society v. Kane, in which the Ninth Circuit upheld judgment for UC-Hastings Law School (Mary Kay Kane was then dean), rejecting similar claims of expressive association and First Amendment rights by CLS. 2009 WL 69339. The Court of Appeals summarily affirmed a district court decision, citing simply its ruling in Truth v. Kent. Any risk that the latter opinion will be overturned is now over.

Meanwhile, CLS filed a cert petition in its case, which is before the Supreme Court this summer. Based on Truth v. Kent, the prospects for another denial of review, leaving in place a good decision, seem good.

Dellinger on Souter on social change and the Supreme Court

By Walter Dellinger, from Slate, writing on the role of public opinion in Supreme Court decision-making:

...It was not a mere coincidence that when the court stuck down homosexual sodomy laws in Lawrence v. Texas in 2003, the number of states that still had such laws was about the same as the number of states that still had de jure school segregation when Brown was decided—in each case, the retrograde states made up about one-fourth of the country. In contrast, when the court sustained state laws banning the use of lethal medication in Washington v. Glucksberg, the rejected claim of a right to physician-assisted suicide had not yet been recognized by even a single state.

What makes these questions so timely is that David Souter ... addressed these issues in a very powerful way just [before leaving the Court] in an passage that may well have been intended as a valedictory message to the court and a caution to those who litigate on behalf of individual liberty. In his dissent in the DNA case, District Attorney's Office v. Osborne, Souter wrote extensively about issues of substantive liberty that he did not need to address in order to decide the case before him. He obviously had some things he really wanted to say before hanging up his black robe.

In his essay-within-an-opinion, Souter clearly had the sweep of the court's future in mind, and not just any single issue. It is still hard to avoid the conclusion that one issue in his mind was gay marriage. His carefully nuanced message both defends the legitimacy of judicial recognition of "non-traditional" rights and cautions against a premature quest for national judicial rules.

Souter, recognizing the value of "continuity with the past," accepts the proposition that tradition is a "serious consideration" in judging whether a practice is "outside the realm of reasonable governmental action." He rejects, however, the notion that tradition defines and limits the scope of the liberties entitled to judicial protection against hostile legislation.

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14^th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking....

Fourth Circuit abortion case in pipeline to Supreme Court

From SCOTUSblog; also, more background here -

Two years after the Supreme Court last ruled on abortion restrictions, a new test case is likely on its way to the Court, perhaps reaching there by next Fall.  Responding to an order by the Justices to take a new look at a Virginia abortion ban, the Fourth Circuit Court on Wednesday upheld the law.  The en banc Court divided, 6-5, in sustaining the law against claims that it would criminalize the most common method of abortions performed in the second trimester.

The case of Richmond Medical Center, et al., v. Herring (Circuit docket 03-1821) is developing as a sequel to the Justices’ 5-4 ruling in 2007 in Gonzales v. Carhart, upholding a federal ban on a procedure its critics call a “partial-birth abortion.”   The Fourth Circuit’s opinion, concurrence and dissent can be downloaded here.

Twice, a divided Fourth Circuit panel struck down the state law known as the “partial-birth infanticide” law, enacted six years ago in Virginia.  The law differs in some significant respects from the federal ban on “partial-birth” abortions that the Court upheld in the Carhart decision, and that difference was the key factor in both Circuit panel rulings.

The first of those panel decisions was set aside by the Supreme Court (docket 05-730) on April 23, 2007, for reconsideration in the wake of Carhart.  After the panel once more nullified the law, the en banc Circuit Court set that aside and reconsidered the law’s validity, leading to Wednesday’s ruling.  It rejected both a “facial” challenge — to the law as written, no matter in what situation it might be applied — and a challenge to its application to a Richmond doctor and his clinic.

While noting that the Supreme Court had increasingly frowned on “facial” challenges to legislation, the Circuit Court did not rule them out entirely when aimed at an abortion law, just as the Supreme Court has not forbidden such challenges.  But the Circuit Court said that, no matter what standard is applied, the Virginia law satisfied it.

While the panel had said that there was a serious risk that the Virginia law, in practice, could criminalize a doctor’s procedure that violated the law simply by an accident, the en banc majority said “there is little or no evidence” of that in this case, although conceding that it might happen rarely.

The Virginia law, it said, is “somewhat different” from the federal ban, but still “provides sufficient clarity as to what conduct is prohibited to enable a doctor of reasonable intelligence to avoid criminal liability under it.”

The most significant difference between the Virginia ban and the federal ban is that, under the Virginia law, a doctor who intends to perform an abortion that does not violate the law, but the fetus accidentally is delivered intact to a significant degree, and if the mother’s life is not at stake, the doctor has committed a crime.

The Circuit Court’s dissenters argued that the majority ruling “marks an alarming departure from settled Supreme Court precedent: it sanctions an unconstiutional burden on a woman’s right to choose…[The law] violates the Constitution because it exposes all doctors” who perform a standard abortion to prosecution, conviction, and punishment, because it punishes violations of the law by mere accident.

Premiere of film about "Gay Olympics" case

A new film is opening about the Supreme Court case that upheld the right of the U.S. Olympics Committee to stop use of the phrase "gay Olympics." Claiming the Title, which uses the case as a window into examining the lgbt rights movement in the late 1980s, has its world premiere this Sunday the 21st at 3:30 pm at the Castro Theater in San Francisco. The story revolves around the litigation of San Francisco Arts & Athletics Ass'n v. U.S. Olmpics Committee, 483 U.S. 522 (1987).

I've seen it (confession: I'm in it), and I think that the two filmmakers - Jonathan Joiner and Robert Martin - have done a terrific job. In many ways, the film is an homage to Mary Dunlap, the brilliant out-spoken lawyer who was lead counsel for the plaintiffs.

If you're not in the Bay Area, you can see the trailer and watch for the film to show up at a festival near you.

The showing is actually a double-header. Claiming the Title will be followed by a screening of Training Rules, a new film by Dee Mosbacher and Fawn Yacker, about the struggles faced by lesbian athletes.

What a great way to spend a Sunday afternoon - I wish I could be there.

ACLU issues analysis of Sotomayor rulings

The ACLU has issued a detailed analysis of Judge Sonia Sotomayor's judicial record. The conclusion:

In general, Judge Sotomayor's judicial opinions reflect a detailed attention to the facts and a close regard for precedent.  They are carefully reasoned but do not engage in broad discussions about constitutional philosophy or competing modes of constitutional interpretation. Because Judge Sotomayor's opinions are so fact-based and rarely stray far from well-established precedents, they are often difficult to characterize as either liberal or conservative.

HT: Sharon McGowan

Supreme Court denies cert in DADT case

This morning the Supreme Court denied certiorari in Pietrangelo v. Gates, meaning that the First Circuit's opinion upholding DADT (in Cook v. Gates, 528 F.3d 42) is the final word in that lawsuit.  The case was interesting because of the split it engendered among lgbt advocates and because the Justice Department's obligation to file a response to the cert petition forced the new administration to walk a line between defending a federal statute, as DoJ almost always does, and not defending too strongly a system that the President has said he opposes. (background here) No one expected anything other than the cert denial that has now been announced.

Sotomayor: "The facts that judges choose to see"

The following excerpt is from the infamous speech that Judge Sotomayor gave at Boalt in October 2001, later published in the La Raza journal, and which now has been demagogued endlessly by rightwingers desperate for a way to stop her appointment. In my view the speech offers not just a solid defense against charges of racism (it makes me choke even to write that), but a set of perceptive insights into the process of judging. Judge Sotomayor obviously has thought deeply about the tensions with which she must live and work as a Latina judge. I will be thrilled if she becomes a Justice of the Supreme Court.

... Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be.

That same point can be made with respect to people of color. No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judith Resnik describes it, "to judge is an exercise of power" and because as, another former law school classmate, Professor Martha Minow of Harvard Law School, states "there is no objective stance but only a series of perspectives - no neutrality, no escape from choice in judging," I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging. ... As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position but as a group we will have an effect on the development of the law and on judging. ...

Whether born from experience or inherent physiological or cultural differences, ... our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line, since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Minow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

... I, like Professor [Stephen] Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. ...[N]ine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown [v. Board of Education].

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept ... [that] the presence of women and people of color on the bench [will make a difference]. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage....

Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely, and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me require. I can and do aspire to be greater than the sum total of my experiences, but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate....

[Full text of speech here]

In 1976, Sotomayor stood up for gay college students

The Michigan Messenger blog has posted a letter originally published in The Daily Princetonian in 1976 that condemns the ransacking of a dorm room shared by two members of the Gay Alliance of Princeton. Among the 39 signers was an undergraduate named Sonia Sotomayor.

The letter reads, in part:

For private citizens to try to intimidate the Gay Alliance into silence is a denial of the foundations on which a university is built.

No matter how much one may disagree with the Gay Alliance or the policies they are advocating, no matter how repugnant one may find homosexuality, the manner of expressing this opposition should be intellectual. At this university we are dedicated to persuasion by reason, not by brute force.

Intimidation of those courageous enough to express their views, violence directed against unpopular associations, midnight criminal assaults on private residences— these speak for themselves. The entire university community should be angry, and disgusted, that this kind of action has occurred at Princeton.

By itself, the letter tells us nothing but that Sotomayor joined an entirely conventional appeal to the values of free speech and for preservation of an intellectual culture based on reason. But 1976 was a long time ago. Straight college students did not write law school admission essays about their aspiration to work for gay equality. Probably no one on earth would have known or cared if she had simply declined to sign. I don't mean to overstate its significance, but the letter solidifies my sense that Sotomayor's nomination is the best thing to come out of this White House yet.

History of right-wing attacks on Judge Sotomayor

With the news that President Obama has nominated native Nuyorican and Yankee fan (also Judge of the Second Circuit) Sonia Sotomayor to the Supreme Court, we know that as night follows day, conservatives will attack her as ... pretty much anything they can think of.  They will pretend to be shocked - shocked! - that the President could put forth a nominee who is so controversial.  When they do, remember that they have a history of this, not just with the nominees of Democratic Presidents, but specifically with Judge Sotomayor.

President Obama's selection was effectively made possible by President Clinton's naming her to the Court of Appeals. When Clinton nominated then District Court Judge Sotomayor to the Second Circuit 12 years ago, Republicans in the Senate stalled her confirmation for more than a year. So along with everything else you read about her, remember this article from the NY Times on June 13, 1998:

Judge Sonia Sotomayor seemed like a trouble-free choice when President Clinton nominated her to an appeals court post a year ago. Hers was an appealing story: a child from the Bronx housing projects who went on to graduate summa cum laude from Princeton and become editor of the Yale Law Journal and then a Federal prosecutor. Moreover, she had been a trial judge since 1992....

But Republican senators have been blocking Judge Sotomayor's elevation to the appeals court for a highly unusual reason: to make her less likely to be picked by Mr. Clinton for the Supreme Court, senior Republican Congressional aides said in interviews. ...

Judge Sotomayor's nomination was approved overwhelmingly by the Senate Judiciary Committee in March. Of the judicial nominees who have cleared the committee in this Congress, she is among those who have waited the longest for a final vote on the floor.

Senate Republican staff aides said Trent Lott of Mississippi, the majority leader, has agreed to hold up a vote on the nomination as part of an elaborate political calculus; if she were easily confirmed to the appeals court, they said, that would put her in a position to be named to the Supreme Court. And Senate Republicans think that they would then have a difficult time opposing a Hispanic woman who had just been confirmed by the full Senate.

''Basically, we think that putting her on the appeals court puts her in the batter's box to be nominated to the Supreme Court,'' said one senior Republican staff aide who spoke on the condition of anonymity. ''If Clinton nominated her it would put several of our senators in a real difficult position.'' ...

Senator Patrick Leahy of Vermont, the senior Democrat on the Judiciary Committee, was blunt in his criticism of the Republicans who are blocking a confirmation vote. ''Their reasons are stupid at best and cowardly at worst,'' he said. ''What they are saying is that they have a brilliant judge who also happens to be a woman and Hispanic, and they haven't the guts to stand up and argue publicly against her on the floor,'' Senator Leahy said. ''They just want to hide in their cloakrooms and do her in quietly.'' ...

On Sept. 30, the day of her confirmation hearing, Rush Limbaugh, the conservative radio talk show host, warned the Senate that Judge Sotomayor was an ultraliberal who was on a ''rocket ship'' to the Supreme Court. That day, Judge Sotomayor was questioned closely by Republicans. In the end, the only Republicans to vote against her were Senator John Kyl of Arizona and Senator John Ashcroft of Missouri....

Justice Dept does the obvious thing in second DADT case

Yesterday, the Justice Department filed its opposition to certiorari in the DADT case involving one of the plaintiffs in Cook v Gates, 528 F.3d 42 (1st Cir. 2008), who had asked the Supreme Court to review the Court of Appeals decision upholding the military's policy. The other 11 plaintiffs asked that the Court not grant review, even though they had  lost. (See below for why)

There is virtually no chance that the Court will take the case, since the precedent for rejecting facial challenges to this policy is unanimous.  Nonetheless, the Department, through the office of the solicitor general, had to respond to the petition.

The most interesting thing about the opp cert brief is that it is the first document related to an lgbt rights issue filed with the Supreme Court by the Obama Justice Department, and so it provides the first glimpse of how the new team will approach gay issues. The answer seems to be - with political savvy.

The brief can perhaps be best described as minimalist. It was clearly crafted to do the least possible damage to future efforts to eliminate DADT either in the courts or in Congress. Although it does state that "[t]he decision of the court of appeals is correct," it successfully ducks the issue of which standard of review the Court should apply in testing laws that discriminate based on sexual orientation, by arguing that military cases are unique. 

The plaintiff had asked the Court to take the case to address what the standard of review should be post-Lawrence v. Texas. The Department argued that "[a]pplying the strong deference traditionally afforded to the Legislative and Executive Branches in the area of military affairs, the court of appeals properly upheld the statute. ...The court's decision upholding [DADT] rested not on its choice of a formal standard of review, but on its strong deference to Congress's judgments on matters relating to the armed forces."

The other plaintiffs in this case asked the Court to deny review so that a better case in a different circuit (Witt v. United States) would not be cut off from further factual development, a strategy that Justice has enabled by declining to seek Supreme Court review of the 9th Circuit decision that the government lost in Witt. Details here.

ABC says Kagan, Sotomayor and Wood top the list for Supreme Court

ABC Supreme Court correspondent Jan Crawford Greenburg is reporting that the White House has narrowed the list of possible successors to Justice Souter to six candidates, with Judges Sonia Sotomayor (2d Circuit) and Diane Wood (7th Circuit) and Solicitor General Elena Kagan at the top of the list.  According to Greenburg, Chief of Staff Rahm Emanuel is pushing Sotomayor, while other White House staff urge that either Kagan or Wood would be better at building coalitions among the justices.

Predicting how Obama will choose a Supreme Court Justice

In light of Justice Souter's resignation, speculation is intense about the kind of justice that President Obama will appoint.  Most of this is just pointless noise; it's a good bet that the list was short before Souter's announcement, and that the POTUS is deciding now among a very small group. I think the best rule of thumb for a prediction is that Obama will appoint a person who he thinks will be the kind of justice he would be. (And Justice of the Supreme Court would be, imho, an excellent position for the big O after the end of his presidency.)

Last summer the NY Times published eight of the exams (scroll to bottom of link) that Obama gave while he was teaching at the University of Chicago Law School, together with two sample answers.  Almost every exam includes a question that involves sexual orientation or reproductive rights or a combination.  

To me, the most important aspect of this window into his thinking lies not in his answers, but in which questions he found intriguing and rich enough to build an exam around. Consider the 1996 con law exam (Part I), in which students had to analyze a "Preserving Family Values Act," that prohibited furnishing infertility services to homosexuals.  This was seven years prior to Lawrence v. Texas, although even today the Equal Protection Clause analysis would still be centered on Romer v. Evans, then only a year old. Read Professor Obama's analysis of that aspect of the hypothetical statute (pp 5-6).   it's cool, critical and analytical. 

This President knows and cares a great deal about the law. Among the names being endlessly recylced by the press as potential nominees, consider which would be most likely to write the questions and model answers as Obama did.  That's the short list.