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Is Obama any better than Clinton with Supreme Court appointments?

May 29, 2009 Is Obama any better than Clinton with Supreme Court appointments?

Bill of Rights. (From the public domain.)

When Bill Clinton was elected president, I was happy to be seeing George Bush I leave the presidential palace, but did not have high hopes for Bill Clinton — including consideration of his detour to attend an execution during the presidential campaign — but had higher ones than I had for Bush I. My expectations became my views of Bill Clinton’s presidency to this day.

I have had the same views right up to today about Barack Obama. He is a great improvement over George Bush II, but I am not holding my breath for him to do any better than Bill Clinton in Clinton’s rather centrist approach (at best) to criminal defendants’ rights, civil liberties, and immigrants’ rights, among other important social justice items.

Similarly, just as I expected Bill Clinton to do less damage with federal court appointments than his predecessor, I anticipated the same from Obama, but did not expect better. From what I know so far about Supreme Court nominee Sonia Sotomayor, she is no better a pick than Clinton’s nominations of Justices Ruth Bader Ginsburg and Stephen Breyer; the latter two seem to have excellent legal and general minds and generally to take great care in their written opinions. On the one hand, the elimination of discrimination based on gender, race, ethnicity, and religion is of course critical, and a predominantly all-white male Supreme Court involves insufficient diversity benefits. On the other hand, just as Obama and everyone currently sitting on the Supreme Court do not deviate too far from preserving heavy power in government, corporations, and the wealthy, it does not appear that Sotomayor will be any different in that regard, particularly if the claim is true that she has not deviated much from stare decisis coming from her own Second Circuit.

It seems that Obama engaged in a well-choreographed, tightly-controlled search for and announcement of Justice Souter’s replacement, rather than risking the appearance of dissent among the more liberal organizations and individuals who backed and donated to his presidential campaign. In a democratic and open government, I would wish to see all presidents welcome real public input before making a final Supreme Court nomination. Hope springs eternal.

Here are some additional items and links to consider:

– I doubt Judge Sotomayor will be a good enough friend to free expression, and plan to review her opinions in this area. For instance, as addressed by a great First Amendment lawyer I know, her opinion in Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006). — rejecting vagueness and overbreadth challenges to a parole condition banning possession of "pornographic material", when "pornographic material" is not a term of legal art — gives cause for pause about whether she has a sufficient grasp of the First Amendment and related court opinions to sufficiently protect First Amendment rights.

– Sotomayor is a former prosecutor. She apparently has never represented a criminal defendant, and it appears that she has never represented an individual as a client, beyond any claim that crime victims are the clients of prosecutors. SexCrimes says she did not favor criminal defendants much more than her peers in 2008; that leaves her other years on the bench to examine.

– Here is a May 27, 2009, New York Times overview of some of Judge Sotomayor’s "notable" court opinions and articles.

Jonathan Turley likely will provide important reading throughout the confirmation process.

Sentencing Law and Policy posts some links on Judge Sotomayor.

Crime and Consequences addresses Judge Sotomayor’s treatment of the AEDPA.

TalkLeft repeatedly blogs on Judge Sotomayor. Jon Katz.

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