'Nuff said

(Taking context-optional note of thought-provoking quotes)

The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read.

-- Dahlia Lithwick (above right), in a Slate commentary anticipating the hearings, set to begin next Monday, on the nomination of Solicitor General Elena Kagan (left) to the U.S. Supreme Court. (In addition to the post above, which mentions Kagan, check out SCOTUSblog's views on Kagan-as-likely-4th-ever-woman-Justice here.)

Lithwick's question was part of her analysis of a recent speech by ex-Justice David Souter (below right). With statements like that quoted below, Souter, who retired last Term (prior posts), challenged those who claim that all constitutional questions are susceptible to a "fair reading" -- his phrase for viewpoints that others might characterize as the originalist or the umpire mode of judging:

A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours clash, and when they do a court is forced to choose betwen them, between one constitutional good and another one. The court has to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.

Field guide to Sotomayor hearings

At 10 a.m. Eastern time tomorrow, the Senate Judiciary Committee will begin hearings on President Barack Obama's nomination of Sonia Sotomayor (right), since 1998 a Judge of the U.S. Court of Appeals for the Second Circuit, to succeed Justice David H. Souter on the U.S. Supreme Court. Herewith, a crib sheet:

► All IntLawGrrls' prior posts on Sotomayor are here; of particular interest may be her views on international law; judging and empathy; and legal realism and the Court.

Watch the hearing in person at Room 216, Hart Senate Office Building (good luck getting in). Webcast available here.

► A list of the Senators on the Committee -- for the Democrats, 2 women and 10 men, for the Republicans, 7 men -- is here.

► The list of witnesses scheduled for the hearing is here. A fraction of those on the list are women. For the American Bar Association, there'll be Kim Askew and Mary Boies. To be called by the Democrats: Temple Law Dean JoAnne A. Epps, on behalf of the National Association of Women Lawyers; Patricia Hynes, President of the New York City Bar Association; Ramona Romero, National President of the Hispanic National Bar Association; Yale Law Professor Kate Stith; and U.S. Rep. Nydia Velázquez (D-N.Y.), Chair of the Congressional Hispanic Caucus. To be called by the Republicans: Linda Chavez, President, Center for Equal Opportunity; Sandy Froman, past President, National Rifle Association; George Mason Law Professor Neomi Rao; and Dr. Charmaine Yoest, Americans United for Life.

How long will this confirmation process take? Predictions welcome.

On May 17

On this day in ...
... 2004 (5 years ago today), Massachusetts became the 1st state in the United States to legalize same-sex marriage. The New York Times' story began:

Hundreds of gay and lesbian couples streamed into city halls from Boston to the Berkshires on Monday as Massachusetts became the first state to allow same-sex marriages.
Weddings were held on a hill overlooking a park, in churches and synagogues, in the shoebox quarters of justices of the peace, and on a Christmas tree farm with peacocks, pigs, turkeys and Icelandic sheep nearby.

States today permitting such marriages are Connecticut, Vermont, Iowa, and Maine -- making the issue a likely grilling-point for the next Supreme Court nominee, as the Washington Post reports in today's paper:

[I]n the two weeks since Justice David H. Souter announced his retirement, Maine also legalized same-sex marriage, becoming the fifth state to do so; the New Hampshire legislature sent a marriage-equality bill to the governor; the New York State Assembly approved gay-marriage legislation; and the District of Columbia voted to recognize same-sex marriages performed elsewhere.

California, as we've posted, has gone there and, for now at least, back again.

... 1959 (50 years ago today), "at a televised ceremony in the Sierra Maestra," Fidel Castro, who in February had been appointed Prime Minister of Cuba, announced an agrarian reform law that resulted in massive redistribution of large landholdings. "The declaration of agrarian reform," according to a political science text, "began the revolutionary transformation of Cuba's economy and, as a consequence, of Cuban society." (credit for Cuban government photo of Castro signing the new law)

(Prior May 17 posts are here and here)

Justice Souter & transnational law

Since Sosa, individuals have continued to seek to bring human rights abuses to justice through U.S. courts. Justice Souter deserves recognition for allowing the U.S. courts to serve this crucial role in justice.

So concludes our colleague Anupam Chander in "David Souter, Human Rights Justice," a study of the Supreme Court Justice who, as we've posted, is set to retire when this Term ends in late June. In his Balkinization post, Anupam reminds of the contribution that Justice Souter (left) made to the law of human rights by his authorship of Sosa v. Alvarez-Machain (2004), the Court's landmark judgment respecting the Alien Tort Statute. (photo credit)
The post provides a valuable corrective to the conventional account of Souter as an Amero/eccentric.
True, Souter did write the following in his concurrence-in-the-judgment in Washington v. Glucksberg (1997):

The principal enquiry at the moment is into the Dutch experience, and I question whether an independent front-line investigation into the facts of a foreign country's legal administration can be soundly undertaken through American courtroom litigation.

But that passage occurred in a case in which every single Justice agreed that the Due Process Clause of the 14th Amendment to the U.S. Constitution does not guarantee a right to assisted suicide -- a right that, though it existed in the Netherlands, was, in the view of the Court, alien to American tradition.
In the years following Glucksberg, moreover, Souter cast his vote in favor of judgments that enforced constitutional rights found to be both rooted in U.S. tradition and consistent with contemporary practice in countries that share the United States' commitment to fundamental rights. As I've analyzed in this 2006 Georgetown Law Journal article, those judgments drew rebuke from dissenters on account of their mention of foreign and international law and practice. Specifically:
► Atkins v. Virginia (2002). Justice John Paul Stevens' opinion for 6 Justices, including Souter, noted, in the course of holding that the 8th Amendment to the U.S. Constitution bars execution of mentally retarded persons, that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." (credit for photo of lethal injection chamber, courtesy of the California-Berkeley Death Penalty Clinic)
► Lawrence v. Texas (2003). Justice Anthony M. Kennedy's opinion for 6 Justices, including Souter, discussed European Court of Human Rights jurisprudence and British legal reforms in the course of holding that the 14th Amendment forbids criminal prosecution of same-sex intimacy.
► Roper v. Simmons (2005), in which Souter cast an essential 5th vote. Kennedy's opinion for the majority engaged in extended discussion of global practices, plus treaties like the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, in holding that the 8th Amendment prohibits execution of children who were younger than 18 at the time they committed murder.
Also deserving note is Souter's contribution to the Court post-9/11, via jurisprudence that I've analyzed here and here:
► Souter voted with the majority in Rasul v. Bush (2004) and Boumediene v. Bush (2008), which held, first on statutory and then on constitutional grounds, that noncitizens detained at Guantánamo may seek legal recourse in U.S. courts. In Boumediene as in Simmons, Souter's vote was essential to the result. (It was not enough in Padilla v. Rumsfeld (2004), in which a majority turned back a habeas challenge by a U.S.-born "enemy combatant" detainee notwithstanding 4 dissenters' impassioned objection to the incommunicado detention and interrogation to which the detainee had been subjected.)
► Souter voted with the majority in Hamdan v. Rumsfeld (2006), in which Stevens set forth multiple reasons for invalidating the system of military commissions established pursuant to a military order of President George W. Bush. Here too Souter's vote was essential on all grounds that commanded a majority -- including the far-reaching holding that Guantánamo detainees are protected by Common Article 3 of the 1949 Geneva Conventions on the laws of war. Souter further joined parts of the opinion that failed to win Kennedy's also-essential 5th vote -- among those parts, that concluding that procedures set out in the President's plan were illegal because they violated customary international law, as well as that concluding that no tribunal founded on the law of war has jurisdiction to adjudicate the offense with which defendant was charged, conspiracy. On that last point in particular, as a matter of international law, Souter and 3 Justices got it right.
► Souter also got it right in Hamdi v. Rumsfeld (2004). As I've discussed here and elsewhere, Justice Sandra Day O'Connor's opinion for a 4-member plurality authorized the indefinite detention of a U.S.-born "enemy combatant" detainee based both on the brushing-aside of a federal statute, the 1971 Non-Detention Act, and on a flawed understanding of the international law of war. Souter's concurrence/dissent -- joined solely by Justice Ruth Bader Ginsburg, herself recognized for receptivity to foreign context -- correctly construed both bodies of law. The opinion found that the specific federal statute controlled, not a 2001 congressional resolution that made no mention of detention. And it trenchantly demonstrated that executive detention as practiced post-9/11 did not conform -- to the contrary, it contradicted -- the law of war as embodied in custom and in treaties like the 3d Geneva Convention. Had Souter's reasoning prevailed, that would have forced critical reexamination of policy in 2004, and Guantánamo might not still bedevil in 2009.
These too are ways that, to paraphrase the quote at top, Justice Souter has allowed courts in the United States to serve a crucial role in justice.

The next Justice

Popping into a White House press briefing, President Barack Obama just confirmed that Justice David Souter is retiring after 19 years on the U.S. Supreme Court. (Souter's resignation letter is here.)
Last night's leak of the news already has opened floodgates of speculation about who will succeed Souter. Will it be:
► A woman? Lots of folks think this is a good idea. It sure would end the isolation that Justice Ruth Bader Ginsburg has often lamented -- most recently, as we posted, just a couple weeks ago -- since the departure of her colleague, Justice Sandra Day O'Connor. More women, moreover, sure would make the Court's group photo look more like those of most U.S. law school student bodies, many faculties, and lots of law firms.
► Someone versed in transnational and international law? IntLawGrrls can't help but like the idea, explored in depth here by our colleague Peter Spiro. If this proves a criterion, a few people whose names already are cropping up on short lists jump to mind: Judge Diane P. Wood (below right) of the U.S. Court of Appeals for the 7th Circuit, and Senior Lecturer in Law at the University of Chicago (same title once held by Obama), who gave a terrific talk on globalization and law at a 2007 conference cosponsored by the Association of American Law Schools and the American Society of International Law; another speaker at that 2007 ASIL/AALS conference, Harold Hongju Koh, Yale Law Dean and State Department Legal Adviser nominee, about whom IntLawGrrls readers know much from these posts; and Judge William A. Fletcher of the U.S. Court of Appeals for the Circuit, a federal jurisdiction/civil procedure professor at California-Berkeley and a participant in talks on globalization and law, among them Réseau ID, in which several IntLawGrrls and Koh also have taken part.
► A Latino/a? Our colleague and California-Davis Law Dean Kevin Johnson has examined this idea in 2 articles, available here and here.
► The 1st openly gay nominee? That's the hope of some, according to this article.
► Someone with significant military experience? Our colleague Eugene R. Fidell, the President of the National Institute of Military Justice now visiting at Yale Law School, made a persuasive argument for that trait in his presentation on the "Security" panel of the March symposium in honor of Justice John Paul Stevens at California-Davis, available now on webcast and soon in print in the UC Davis Law Review.
► Someone whose legal experience comes from the practice rather than from academia or the bench? One name that's already surfaced in this regard is Teresa Wynn Roseborough (left), Chief Litigation Counsel at MetLife, former Deputy Assistant Attorney General, former partner at Atlanta's Sutherland Asbill firm, former Stevens clerk, and former Chairman of the Board of the American Constitution Society. Teresa gave a terrific talk on the "Equality" panel at our JPS symposium: drawing on her experience arguing on behalf of Al Gore before the 11th Circuit en banc, she deployed actual chad-cards and actual Florida voting booths to persuade the symposium audience that Justice Stevens and other Supreme Court dissenters in Bush v. Gore (2000) had the better view of the case. (Webcast here.)
All the traits above, and more, no doubt will be weighed as Obama moves toward his ultimate choice. As he does, let's hope he keeps well in mind the overarching criterion Obama himself set at today's press briefing:

'I will seek someone with a sharp and independent mind.'