In Rasul v. Myers, a group of individuals who had been held in Gutantanamo filed suit claiming inappropriate use of torture and “religious abuse and humiliation.” The DC Circuit handed down an opinion before the Supreme Court handed down Boumediene and today the Court vacated and remanded Rasule in light of its decision in Boumediene. You can see the filings in the case here thanks to SCOTUSblog.

The Court also, as expected, denied application for stay and/or injunction in Wrotnowski v. Bysiewicz, a case questioning whether or not Barack Obama can correctly be defined as a “natural born citizen” as mentioned in Article II. This marks the third case out of the three filed in which the Court has struck down similar claims.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court to Consider Another Obama Citizenship Claim in Wrotnowski v. Bysiewicz (December 8, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)

Unsurprisingly, one factor that is very seldom discussed in Election 2008 coverage is how the candidates would treat the DoJ if elected, both ideologically and logistically. Perhaps it’s time for Wolf Blitzer and the cats at CNN to ask a question about human trafficking, mandatory minimums, restricted access to civil courts, wire-tapping, or racial discrimination…

The Bush precedent has hopefully taught all of the candidates two lessons: first, that a multi-dimensional DoJ cannot be taken for granted, and, second, that effective policymaking largely hinges on the competency of the choice for Attorney General.

I think a join a good number of people in arguing that Eric Holder, President-elect Obama’s choice to be the next Attorney General, is just the sort of competent and experienced legal mind needed to restore the Justice Department to its Clintonian roots as a civil rights watchdog. A lot of what I wrote in that post was a reaction to a piece in that morning’s New York Times, which drew attention to the fact that the Bush DoJ seemed to be pushing civil rights litigators out the door in favor of so-called “holy hires” who specialized in religious advocacy. The Times indexed a number of consequences of what it called a “mission change” in the Bush Justice Department:

[Increased intervention] in federal court cases on behalf of religion-based groups like the Salvation Army that assert they have the right to discriminate in hiring in favor of people who share their beliefs even though they are running charitable programs with federal money.

Supporting groups that want to send home religious literature with schoolchildren; in one case, the government helped win the right of a group in Massachusetts to distribute candy canes as part of a religious message that the red stripes represented the blood of Christ.

Vigorously enforcing a law enacted by Congress in 2000 that allows churches and other places of worship to be free of some local zoning restrictions. The division has brought more than two dozen lawsuits on behalf of churches, synagogues and mosques.

Taking on far fewer hate crimes and cases in which local law enforcement officers may have violated someone’s civil rights.

Sharply reducing the complex lawsuits that challenge voting plans that might dilute the strength of black voters. The department initiated only one such case through the early part of this year, compared with eight in a comparable period in the Clinton administration.

Again, Holder seems like just the right choice to reframe civil rights as a departmental priority. As a 1L at Columbia Law School in 1974, Holder worked at the NAACP’s Legal Defense and Educational Fund, a civil rights organization with a reputation for community-based change. A vocal critic of the warrantless wire tap program, Holder is also on the record railing against the USA PATRIOT Act. He told CNN:

When you look at some of the things that have done under the spirit of the [Patriot Act], where you detain citizens without giving them access to a lawyer, where you listen in on attorney-client conversations without involving a judge, these are the kinds of things that have been done in the name of the Patriot Act by this administration that I think are bad ultimately for law enforcement and will cost us the support of the American people…

In short, my argument is that we now have a near-perfect candidate, uniquely equipped to restore the Justice Department’s critical role in protecting civil rights. I think that if you had asked Neil Lewis, who wrote that article for the Times, to give you the name of someone who could lead the DoJ back to its core mission, he might very well have said Eric Holder.

This is especially good news considering that it now appears as though Senate Republicans, after first signaling that Holder’s nomination may be derailed by the Marc Rich pardon, have now acquiesced to the appointment. Expect Holder to be confirmed shortly after the Inauguration, and the DoJ’s policy priorities to begin radically shifting not long after.

Related posts

• Reflections on my First Live Oral Arguments – Ricci v. DeStefano (April 25, 2009)

A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

I don’t think Team Obama should get too comfortable with the Court’s denial of [Donofrio] since [Wrotnowski] IS distributed for Dec 12 conference.

It’s important to remember that the “safe harbor” deadline–the date when Secretaries of State can begin constitutionally locking their states’ Electoral College votes–is today, December 9th. Thus, there is no reason for the Obama team to be anything less than totally comfortable: as long as the case is not heard and ruled upon by the end of business today (which it won’t be because it is not on the docket), the Court will concretely guarantee Obama 365 electoral votes. Game over.

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Court Appears to Deny Stay in Donofrio v. Wells (December 6, 2008)

Wrotnowski v. Bysiewicz is a motion for injunction filed by Cort Wrotnowski against Susan Bysiewicz, Secretary of State of Connecticut to halt the electoral college to hear a complaint against Barack Obama’s claim of citizenship. Unlike some of the other claims before the Court, this case focuses primarily on the President-elect’s father’s nationality. You can read the petition here.

According to the docket sheet (here), Justice Scalia referred the case to the Court as a whole today and it will be discussed at the December 12 conference. There is very, very little doubt that the Court will dismiss the case as it has the last two citizenship challenges to come before it.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

The case had been rejected by Justice Souter, the Justice who presides over that circuit, before it was refiled with Justice Thomas, who opted to refer it to the Court at-large. It was rejected by the Court in conference last Friday. Note that the case was submitted to the court on the eve of the election.

Here is what the docket reads:

Nov 3 2008 Application (08A407) for stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Souter.
Nov 6 2008 Application (08A407) denied by Justice Souter.
Nov 14 2008 Application (08A407) refiled and submitted to Justice Thomas.
Nov 19 2008 DISTRIBUTED for Conference of December 5, 2008.
Nov 19 2008 Application (08A407) referred to the Court by Justice Thomas.
Nov 26 2008 Supplemental brief of applicant Leo C. Donofrio filed. (Distributed)
Dec 1 2008 Letter from applicant dated November 22, 2008, received.

Related posts

• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)
• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)

The Supreme Court’s decision to deny review functionally ends the viability of any conspiracy theory concerning Obama’s citizenship. Even if the Court were to have accepted review, the case would have to have been heard and ruled upon before the “safe harbor” date for Electoral College votes, which is this coming Tuesday, December 9th. The other possibility was that the Court could stay the meeting of the Electoral College, slated for December 15th, pending review.

The denial means that there are now no legal barriers to stop Obama from locking in his 365 Electoral Votes on Tuesday, en route to becoming the 44th President of the United States.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• Fishing for a Story: How the Media Is Reading Too Much Into Referrals of Obama Citizenship Cases by Conservative Supreme Court Justices (December 9, 2008)

Briefs are due about a month after he will be inaugurated and arguments will be held in March or April.

Related posts

• Supreme Court Issues First Orders List Of The Year (January 6, 2008)
• Supreme Court Grants Review In Six Cases; Will Likely Hear Them in April (January 16, 2009)
• Supreme Court Grants Review in Animal Cruelty/First Amendment Case (April 20, 2009)

Biden’s first major test as Chairperson came in June 1987, when President Reagan nominated Robert Bork, then sitting on the United States Court of Appeals for the District of Columbia, to replace the retiring Justice Lewis Powell. Within the hour, Senator Edward Kennedy had taken the floor of the Senate to share his infamous vision of “Robert Bork’s America.” Biden’s Judiciary Committee kept the pace, asking tough questions about privacy and the separation of powers. Bork’s candid testimony before the Committee earned him a reputation as an extremist, and the ACLU bolstered this idea by recommending for only the third time in its 67-year history that a Supreme Court nominee by rejected. The Judiciary Committee concurred, and recommended by a vote of 9-5 (Biden in the majority) that Bork be rejected. Shortly thereafter, Bork’s nomination failed by a floor vote of 42-58, with Biden voting nay.

Bork, who felt slighted by the media and by the Senate, resigned the Fifth Seat on the DC Circuit in 1988; Ronald Reagan soon nominated a veteran of his administration, Clarence Thomas, to fill this vacancy. In the summer of 1991, Biden would face his second test as Judiciary Chair when Thomas was nominated to the Supreme Court. The hearings [Biden-laden transcripts here] were notably divisive, colored by Anita Hill’s allegations of sexual misconduct. Like the American Bar Association, the Judiciary Committee was divided on Thomas’ qualifications; and, like the ABA, the Committee ultimately chose not to make a recommendation and silently sent the nomination to the full floor. Thomas was then confirmed by a vote of 52-48, with Biden again voting nay.

Beyond his Constitutional role in providing advice and consent , Biden used his position on the committee to push through quite a bit of legislation. Some of these bills have been legally dubious. (The Violence Against Women Act of 1994, for example, was ruled in part unconstitutional in United States v. Morrison 529 U.S. 598 (2000).) However, most of his legislation in this committee an elsewhere has been marked by an earnest desire to improve the lives of everyday Americans.

I would suggest that Joe Biden is one of the finer legal minds in this country, and certainly was the finest on Obama’s shortlist (although Tim Kaine did teach law at the University of Richmond for some six years). And so I guess my point is that, if elected, Biden would be an interesting asset to President Obama if he’s tasked with filling vacancies on the high court. Considering the likelihood that Obama could have as many as six nominations, maybe even liberals should be reading a little more closely into Biden’s record.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
• Which Justice Will Author The Medellin Opinion? (March 19, 2008)
• Updated Humor Statistics (March 7, 2008)

WARREN: Which existing Supreme Court Justice would you not have nominated?

OBAMA: That’s a good one. That’s a good one. I would not have nominated Clarence Thomas. I don’t think that he…I don’t think that he was a strong enough jurist or legal thinker at the time for that elevation, setting aside the fact that I profoundly disagree with his interpretation of a lot of the Constitution.

And then to Senator McCain:

WARREN: Which existing Supreme Court Justices would you not have nominated?

McCAIN: [Pause] With all due respect…Justice Ginsburg, Justice Breyer, Justice Souter and Justice Stevens.

The discussions generated by this question provided a rare and candid window into how these men regard the nomination process. Obama argued throughout his discussion of the Judiciary that jurists ought be nominated on the basis of merit and experience. McCain, on the other hand, argued that nominations

should be based on the criteria of proven record of strictly adhering to the Constitution of the United States of America and not legislating from the bench….some of the worst damage has been done by legislating from the bench.

A discussion of Chief Justice Roberts then presented the opportunity for both men to contrast their ideal Justice with one who was currently serving. McCain mentioned that Chief Justice Roberts and Justice Alito were among his “most recent favorites.” He lauded both men as “very fine” and said that he was “proud of President Bush for nominating them.” Senator Obama voiced a slightly different opinion of Chief Justice Roberts:

WARREN: How about John Roberts?

OBAMA: John Roberts….I have to say was a tougher question only because I find him to be a very compelling person, you know, in services individually. He’s clearly smart, very thoughtful. I will tell you that how I’ve seen him operate since he went to the Bench confirms the suspicions that I had, and the reason that I voted against him and I’ll give you one very specific instance, and this is not a stump speech.

WARREN: All right. When I pick this up it means –

OBAMA: Exactly. I’m getting the cues. I’m getting the cues. One of the most important jobs of…I believe the Supreme Court is to guard against the encroachment of the Executive Branch on the power of the other branches, and I think that he has been a little bit too willing and too eager to give an administration – whether it’s mine or George Bush’s – more power than I think the Constitution originally intended.

Also receiving a shot out from Obama was Justice Scalia:

OBAMA: I would not nominate Justice Scalia although I don’t think there’s any doubt about his intellectual brilliance because he and I just disagree, you know. He taught at University of Chicago, as did I in the Law School.

I was pleased to see Obama acknowledge that Justice Scalia is “intellectually [brilliant]” and that Chief Justice Roberts is “clearly smart, very thoughtful,” even though these Justices’ interpretations of the Constitution are hardly in lock-step with his own. McCain, on the other hand, listed every single member of the Court’s liberal contingent (with special disgust for Justice Souter) when asked who he wouldn’t nominate.

But Senator McCain really caught my attention by speculating that, during the next four years, “there will be two, maybe three vacancies” on the Supreme Court. In a recent post I argued via a regression model that the next president would have exactly this many vacancies to fill in the next four years, so it’s good to know someone’s listening. But I think McCain was trying to scare the audience by using a number instead of a phrase like “several” or “a few”; by underscoring just how important the next president is going to be in deciding the future direction of the Court, he is endearing himself as a “best of the worst “option to right-wingers who might not be so hot on some other elements of his agenda. Nevertheless, by so prominently promising to nominate originalist jurists, McCain is backing himself into a corner. And I hope that doesn’t mean that he’ll overlook qualified jurists as a matter of process.

For those intrested, the full transcripts from the event are available here.

UPDATE: A lengthier discussion of these exchanges is available in tomorrow’s edition of The Wall Street Journal, courtesy of their shockingly conservative Editorial Board.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)