Umpire strikes out

In the hearing that led to her installation as an Associate Justice of the U.S. Supreme Court, Elena Kagan (at left) took issue with the remarks of Chief Justice John G. Roberts Jr. (at right), who said during his own confirmation hearing:

'Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role.'

Kagan criticized Roberts' umpire metaphor on the ground that it

'might suggest to some people that law is a kind of robotic enterprise. That there’s a kind of automatic quality to it. That it’s easy. That we just sort of stand there, and we go “ball” and “strike” and everything is clear cut, and there’s no judgment in the process. And I do think that that’s not right, and that it’s especially not right at the Supreme Court level, where the hardest cases go.'

Justice Sonia Sotomayor (left) also rejected the analogy in her confirmation hearing last year.

Legal commentators have noted the provenance of the umpire analogy -- mostly, one dismissed by courts as inappropriate. For example:

► In State v. Crittenden, La. Ann. 448 (1886), reviewing an appeal of a criminal conviction, Louisiana Supreme Court Justice Hicks wrote that "[a] trial is not a mere [game] between counsel, in which the judge sits merely as an umpire to decide disputes which may arise between them."

► In 1910, the Ohio Court of Common Pleas declared that "[a] judge presiding at the trial of a jury case is not a mere umpire of a game of ball, to call balls and strikes." Morrison & Snodgrass Co. v. Hazen, 22 Ohio Dec. 772.

Indeed, when judges have invoked the umpire analogy, is has usually been as a model for what trial judges should avoid, not for what Supreme Court Justices should do.

Was now-Justice Kagan perhaps channeling Earl Warren in his younger days?

Nearly 2 decades before he would become Chief Justice of the United States, then-prosecutor Warren (below right) wrote, in "Organized Crime and Unorganized Law Enforcement," California Journal of Development, June 1934, at 18 (h/t Jed Shugerman):

'It has been my observation over a period of years that when a judge assumes the role of a baseball umpire, merely calling balls and strikes, . . . that justice is seldom done in important cases, but that on the other hand, when the judge assumes the responsibility placed on him by law . . . justice is usually accomplished.'

Court OKs counterterrorism tool

Yesterday the U.S. Supreme Court upheld a criminal ban on "material support" of "terrorism" first placed in the Federal Code in the 1990s.
Plaintiffs in Holder v. Humanitarian Law Project had argued that to include things like "expert advice" in the list of punishable "support" violated the 1st Amendment. Their bid for a declaratory judgment to that effect was rebuffed by the 6-member majority, which interpreted the ban to cover advice given in "connection" with a group whom the Secretary of State has designated a Foreign Terrorist Organization. The Opinion of the Court by Chief Justice John G. Roberts, Jr. stressed that the ruling was not intended to include speech that -- though it might favor goals also favored by such a group -- was made independently of any such group.
Justice Stephen G. Breyer read parts of his dissent from the bench. In his view, the majority deferred too much to the political branches, and thus gave short shrift to its constitutional duty to protect individual liberties. Joining his opinion were Justices Ruth Bader Ginsburg and Sonia Sotomayor (right). The latter joinder deserves particular note, for it marks a break by the newest Justice (herself a former prosecutor) from a counterterrorism policy of the President who nominated her.
The attorney who argued the case for the United States this past February (transcript here) is the subject of the post below: President Obama's current nominee to the bench, Solicitor General Elena Kagan.
My own take on the decision is here, published at The New York Times' "Room for Debate."

Tea leaves on Kagan & international law

How will President Barack Obama's nominee to the U.S. Supreme Court treat issues of foreign, international, comparative, or transnational law?
As with many other areas respecting the judicial potential of Elena Kagan (left) (prior posts), this one is tabula rasa.
Kagan, who seems likely to succeed in her bid to replace retiring Justice John Paul Stevens (at right in bottom photo), has among the sparsest written record of public writings of any nominee in decades.
Consideration of the question of Kagan and intlaw thus requires resort to reading tea leaves.

Leaf No. 1: Marshall Clerk
► Among the judgments issued during Kagan's OT '87 clerkship for Justice Thurgood Marshall was Thompson v. Oklahoma (1988), in which international context played a role in the Court's holding that execution of a 15 year old would violate the Cruel and Unusual Punishments Clause of the 8th Amendment to the U.S. Constitution. The controlling plurality opinion stated (footnotes omitted):

The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo American heritage, and by the leading members of the Western European community. Thus, the American Bar Association and the American Law Institute have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union.

As I've written here, that passage, written by Justice Stevens, set the stage for the debate over consultation of foreign context, one that continues to this day. It's impossible to find out from my Pacific Coast perch what, if any, role Kagan, 1 of 3 TM clerks that year, played in Justice Marshall's decision to join Stevens' opinion.
Kagan appears never herself to have written about the advisability vel non of consultation -- a practice that, as posted, then-Judge Sonia Sotomayor (far right) was constrained to rebuke in her quest last year to become a Justice. But Kagan surely knows of the debate. Indeed, though she offered no thoughts of her own on the matter, Kagan invited Justice Ruth Bader Ginsburg (near right) to rise to the defense of the practice during an interview published as "Remarks Commemorating Celebration 55: The Women's Leadership Summit," 32 Harvard Journal of Law & Gender 233, 237 (2009).
► The term "foreign experiences" does surface in "For Justice Marshall," 71 Texas Law Review 1125 (1993), Kagan's tribute to her then-just-departed Boss. She recalled the penchant Marshall (below left) had for telling stories -- not only of his work as a civil rights and criminal defense lawyer in America, but also of his ventures overseas. (As posted, the best account of the latter is by IntLawGrrls guest/alumna Mary L. Dudziak.) Kagan wrote:

When Justice Marshall was investigating racial discrimination in the military in Korea, a soldier demanded that he provide a password; the hulking (and, of course, black) Marshall looked down at the soldier and asked, 'Do you really think I'm North Korean?' And when assisting in the drafting of the Kenyan Constitution, the Justice was introduced to Prince Philip. 'Do you care to hear my opinion of lawyers?' Prince Philip asked in posh British tones, mimicked to great comic effect by Justice Marshall. 'Only,' Justice Marshall replied -- before the two discovered mutual ground in a taste for bourbon -- 'if you care to hear my opinion of princes.'

Here's the lesson that Kagan said she drew from such stories:

They were a way of showing us foreign experiences and worlds, and in doing so, of reorienting our perspectives on even what had seemed most familiar. And they served another function as well: they reminded us, as Justice Marshall thought all lawyers (and certainly all judges) should be reminded, that behind law there are stories -- stories of people's lives as shaped by law, stories of people's lives as might be changed by law.

Leaf No. 2: Legal Scholar
► No reference to foreign, comparative, transnational, or international law/context appears in any of the half-dozen or so articles that Kagan authored or coauthored while a professor at Chicago and Harvard.

Leaf No. 3: Harvard Law Dean
► Among the most-remarked features of Kagan's tenure as Harvard Law's 1st woman dean was her recruitment of numerous conservatives, among them Jack L. Goldsmith, a Bush Administration lawyer post-9/11 and author of an Office of Legal Counsel memorandum ably criticized by José E. Alvarez in "Torturing the Law" and Leila Nadya Sadat in "Ghost Prisoners and Black Sites: Extraordinary Rendition Under International Law," at pages 175 and 309, respectively, of 37 Case Western Reserve Journal of International Law (2006).
► Kagan also oversaw the introduction into the mandatory 1L curriculum of a class "that looks at law in a comparative or international framework," an innovation she discussed in "The Harvard Law School Revisited," 114 Green Bag 2d 475 (2008):

The courses in comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.

Leaf No. 4: Solicitor General
► Kagan's 14-month stint as the United States' top Supreme Court lawyer has been distinguished mostly by the fact that she's the 1st woman in the post. (It's her 2d turn in the Executive Branch; not much seems to have been written yet about her couple years in the Clinton White House.) Kagan's 1st oral argument before the Court came last September in Citizens United v. FEC; she failed to persuade a majority to sustain a federal statute regulating corporate spending on elections.

Here's a sampling on cases with a transnational angle:

► In Samantar v. Yousuf (a pending case on which we've posted here, here, and here), Kagan, along with State Department Legal Adviser Harold Hongju Koh, signed an amicus brief on behalf of Alien Tort Statute plaintiffs, who're seeking affirmance of a lower-court ruling denying sovereign immunity to a former Somali official.

► During her confirmation hearings and since, Kagan's SG office has called for robust executive power in the campaign against terrorism (and see here). That fact should not surprise anyone who remembers the Clinton DOJ.

In short, a mixed bag. Perhaps the best answer to the question posed at the top is one implicit in a speech by Justice Stevens, whose own approach to transnational matters evolved, as I've written here. Stevens' speech, published at 74 Fordham Law Review 1561 (2006), was delivered in 2005, almost immediately after he'd administered the oath of office to Chief Justice John G. Roberts, Jr. (above).

Applied to present context, the underlying question is this:

What will Justice Kagan be open to learning on the job?

Such on-the-job learning, Stevens said, is

'essential to the process of judging.'

Comparative colloquy at the Court

Law beyond borders unexpectedly emerged as a topic for discussion at the Supreme Court a few days ago.
That foreign context would be discussed in Samantar v. Yousuf, the Alien Tort Statute case argued Wednesday (prior posts here and here), was a given. But who thought that practices abroad might inform discussion a day earlier of whether the 2d Amendment limits local gun control laws? Yet they did, and more than once.
The official transcript shows that early in oral argument, the attorney for petitioners in McDonald v. City of Chicago, Alan Gura, contended that owning a gun not only is guaranteed by the 2d Amendment, but also is among the unenumerated "privileges and immunities" guaranteed by the 1st section of the 14th Amendment. His likening of gun ownership to other privileges and immunities he said are enjoyed by U.S. citizens prompted this exchange with Justice Ruth Bader Ginsburg (below right), who concurs with the Court's occasional efforts at comparative constitutionalism but who dissented in last Term's gun-rights case, District of Columbia v. Heller:

JUSTICE GINSBURG: Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
MR. GURA: Married women were considered citizens of the United States, just like children were considered citizens. However, the law did not always protect people fully, and we've made great strides in this country giving a greater level of protection to certain rights. We understand certain rights better today than we did 140 years ago, and the fact that First Amendment rights were not fully respected, Second Amendment rights were not always respected, Fourth Amendment rights were not always understood well –
JUSTICE GINSBURG: Does it work just one way? I mean, if the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
MR. GURA: ... American history and tradition are important to consider what rights are protected in this country. It's true that our friends overseas who have more or less civilized, free societies don't respect rights to the same level that we do. For example, England, which is a free society, has a monarchy. They have hereditary lords in parliament. They don't have First Amendment protection.
JUSTICE GINSBURG: But then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society -- basic to a free society. So you -- you have to trim your definition. It's not basic to any free society. (pp. 9-10)

Analogous inquiry arose later. Chicago's attorney, James A. Feldman, asserted that no right could be held to constrain states and local governments unless it was "implicit in the concept of ordered liberty"; that is, unless it satisfied a time-honored substantive due process test, one that the Court at times has applied after consulting foreign context (a methodology about which I've written here and here). Justice Antonin Scalia (below left), author of the majority opinion in Heller, countered. He referred to the United States' jury-trial right, one that the Court, reversing precedent, held to be fundamental in Duncan v. Louisiana (1968):

JUSTICE SCALIA: Is the right to trial by jury implicit in the concept of ordered liberty? ... My goodness ... there are a lot of countries that don't give the right to trial by jury, even England does not give it in all criminal cases.
MR. FELDMAN: I think it is in the following sense, when you are talking about a procedural right that is embedded in a particular procedural system, you have to look at how that system operates and how the -- the right works within that particular system. (p. 30)

Agreement came from Chief Justice John G. Roberts, Jr. (below right), who joined the majority in Heller and who'd spoken against consulting foreign law during his confirmation hearings:

CHIEF JUSTICE ROBERTS: I think that's exactly -- that's exactly right. And that is what the Court elaborated on in Duncan. I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty. You can say Japan is a free country, but it doesn't have the right to trial by -- by jury.
The -- the -- the concept only makes sense, I think, if you limit it to our system.
Under our system, as you said, the -- the right to a jury is essential.
MR. FELDMAN: I -- I agree -- I -- I -- I think that's right. ...

At this rather hesitant concession, the Chief Justice jumped in:

CHIEF JUSTICE ROBERTS: Well, if you think that's right, why wouldn't you think, for all the reasons given in Heller, that the Second Amendment right is essential to our system, whatever it may be with respect to France or England or anywhere else? (p. 31)

Roberts' rejoinder well may have left Feldman regretting this half-step into comparative constitutionalism on the matter of individual gun ownership and state regulations intended to protect public safety.

Reflecting on the Supreme Court's consideration of juvenile life without parole ...

Since the U.S, Supreme Court heard oral argument last week in Graham v. Florida and Sullivan v. Florida, commentators have speculated on how the Justices will rule in the two controversial cases (here and here and here).
As posted last week, both cases involve juveniles who received a sentence of life without the possibility of parole in Florida for nonhomicide crimes. At issue is whether the Constitution permits this sentence for a crime committed by someone who was under the age of 18 years. (Consideration comes amid a development discussed in the post below: doubts respecting the death penalty.)
Following an amicus brief that IntLawGrrl Connie de la Vega and I submitted in the cases on behalf of Amnesty International and other groups, including the Bar of England and Wales, I was fortunate to be able to watch the oral argument last Monday.
After two hours of what was vigorous, if not sometimes caustic, questioning by the Justices of the attorneys in both cases, it was surprising that no questions were raised about global law and practice, a prominent feature of the opinion written by Justice Anthony M. Kennedy in Roper v. Simmons (2005). Yet, as was the case in Roper, the United States is isolated among other nations of the world as the only country that imposes this sentence on a juvenile, for any crime.
Below are a few excerpts of remarks not widely reported that may be telling about the issues of interest to the Justices.. The articles reported above captured the gist of the joint reasoning that Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. pursued, in what appeared to be an attempt to win over Justice Kennedy and others to adopt a proportionality approach in the sentencing of juveniles. Roberts and Alito agreed both that kids are different from adults and that age would be relevant, but they sought to attain agreement that some juveniles deserve to receive the life without parole sentence and thus sentencing could be determined "proportionate" on a case by case basis. In relation to the questioning of Graham’s attorney and later the attorney for the state of Florida, the following interchanges were interesting:

JUSTICE ALITO [right]: And you are making a per se argument, no? You can imagine someone who is a month short of his 18th birthday, and you are saying that, no matter what this person does, commits the most horrible series of non-homicide offenses that you can imagine, a whole series of brutal rapes, assaults that renders the victim paraplegic but not dead, no matter what, the person is sentenced shows no remorse whatsoever, the worst case you can possibly imagine, cannot -- that person must at some point be made eligible for parole. That's your argument?
MR. GOWDY [Graham's attorney]: Your Honor, that's -- that's correct. A life -- yes. A life with parole sentence would be constitutional, and that may mean that person you describe still spends his entire life in prison, but life with parole gives some hope to the adolescent who has an inherent capacity to change. It gives him some hope that later in time he may be released.
JUSTICE KENNEDY [right]: What -- what would you do if there were a crime spree and there were different jurisdictions?
One jurisdiction imposes for 35 years, the next jurisdiction for another 35 years, to be served consecutively.
MR. GOWDY: Well, Your -- Your Honor, I -- I think the -- that you would get into the question about whether that sentence is the equivalent of life without parole, and there could be an argument made that if you -- obviously, if you sentence someone to 150, 200 years, there is no conceivable hope of ever
release, 150 years without parole.

Here's more, during questioning of the attorney for the State of Florida:

JUSTICE KENNEDY: If we look just at deterrence, my initial instinct is that the difference in life and life without -- life with parole and life without parole is just not a factor in deterrence. I -- I don't know how I'd confirm that one way or the other, but let's -- let's assume that there is some basis for that intuition. Then, insofar as the deterrence prong is concerned, since it's not a deterrent, and if you assume that there is rehabilitation, what is the State's interest in keeping the accused that -- the -- the defendant in custody for the rest of his life if he has been rehabilitated and is no longer a real danger? What's the State's interest?

And then, during rebuttal by Graham's attorney:

JUSTICE KENNEDY: Why does a juvenile have a constitutional right to hope, but an adult does not?
MR. GOWDY: Because the juvenile is different than an adult. A juvenile is less culpable. He's -- we know over time he will change and -- and potentially reform, as opposed to an adult.

Oral argument transcripts in these juvenile LWOP cases can be found here.

The better to implement U.S. obligations

(Thanks to IntLawGrrls for this opportunity to contribute this guest post)

Increasingly, the proper implementation of the United States’ international obligations in domestic law has presented difficult challenges in the structural context of the U.S. legal system. Challenges are evident at multiple levels of that structure; that is, among the branches of the federal government and between the states and the federal government.

In my recent article, The U.S. Supreme Court Misses the Mark: Towards Better Implementation of the United States’ International Obligations (2008), I use the efforts of the White House (below right) to implement the judgment of The Hague-based International Court of Justice (courtroom above), in the Case Concerning Avena and Other Mexican Nationals (2004), to illustrate some of the problems presented by this issue.

International law scholars, not to mention IntLawGrrls readers of these prior posts, will remember the backstory:

In Avena, the ICJ found that that the United States had breached its obligations under Article 36 of the 1963 Vienna Convention on Consular Relations, for the reason that authorities within the United States had not informed certain arrestees, Mexican nationals, of their treaty-based rights to consular notification. The ICJ further found that the appropriate reparation would consist of providing, by means of the United States’ own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the case.

In the domestic implementation stage of that decision, a 2005 memorandum by President Bush asserted the power to order state courts to provide review and reconsideration of the Mexican nationals’ judgments in state criminal proceedings. The President’s claim to such authority was troubling, because it appeared to violate structural principles of separation of powers and federalism. Ultimately, the U.S. Supreme Court (below left) rejected the President’s claim to such unilateral authority in Medellín v. Texas (2008), in a decision that leaves unanswered many questions regarding the proper implementation of the United States, international obligations.

My article analyzes the strengths and weaknesses of arguments that were made in the Medellín litigation regarding the proper way to implement the ICJ judgment consistent with the United States' constitutional structure. It then places the litigation in the larger context of the debate regarding the implementation of the United States’ international obligations, examining: from a separation-of-powers perspective, the proper role of each branch of the federal government; and from a federalism perspective, the interplay between the state and federal governments. Finally, the article provides some suggestions as to how the United States can better handle implementation of these obligations in the future:

► 1st, the U.S. Supreme Court should pay more than lip service to its own statement, at footnote 9 of Chief Justice John G. Roberts' opinion for the Court, that ICJ decisions are entitled to “respectful consideration.” The article describes how a true respectful dialogue between the two courts might proceed.

► 2d, with respect to the political branches, when ratifying a treaty the Senate (left) and the President should provide clearer directions as to how the treaty ought to be implemented, and whether and what types of private claims will be allowable under the treaty.

► 3d, the federal and state governments should establish a better consultation process, particularly for treaties that affect areas of traditional state regulation.

Through these methods, it is hoped that treaties will be implemented more effectively in U.S. law, and that better relations will result, both externally with the United States’ treaty partners and internally among the various branches and levels of government.

Sotomayor takes Obama to Court

Later this morning Chief Justice John G. Roberts, Jr., will administer the oath of the office of Associate Justice to Sonia Sotomayor (right). The event will take place at the Court's marble edifice (below) -- a choice of location that reflects President Barack Obama's understanding both of the separation of powers and the importance of symbolism.
In recent years confirmees have had to take part in ceremonies at the White House. This departure from prior practice has been cause for concern among some on the Court. Just weeks after the inauguration at which Roberts swore in Obama, the Justice who administered the oath to Vice President Joseph Biden, John Paul Stevens, made a very public statement of concern.
The date was February 26. The place, Washington's Newseum. The occasion, Stevens' discussion with Cliff Sloan and David McKean, the authors of The Greatest Decision (2009), an excellent social history of Chief Justice John Marshall's landmark decision on judicial review, Marbury v. Madison (1803). Stevens used the opinion's treatment of the judicial oath as his springboard to discuss where a Justice's oath should be taken. Here's a transcription of the C-SPAN video of what Stevens, appointed in 1975 by President Gerald R. Ford, said:

[I]t's a very personal thing, but – rereading the opinion, the first part on the oath stresses the importance of the commission that was withheld or was not delivered to Marbury. In the end of the opinion, one of the reasons given by John Marshall for finding constitutional objection to their appellate jurisdiction was the nature of the oath that the judges had to take, and the fact that they had to solemnly swear to administer justice and so forth, and 'according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.' And he stresses the fact that because they take that oath to uphold the Constitution, obviously the Constitution has to be a document of special importance.
Well, these two aspects of the case brought to mind my own installation. When I was installed as a Justice of the Supreme Court, President Ford came down to the Court, and moved the admission of the Attorney General who presented the commission to the clerk, and then the oath took place. ... When Justice O’Connor, who was the next appointment, was installed, President Reagan came down to the Court – we take actually two oaths, there is a statutory oath and a constitutional oath – and one of them was traditionally administered in the Conference Room, and the other in open court as part of the ceremony. And President Reagan came to the administration of the oath in the Conference Room.
And I’ve always thought those two examples of the President coming to the Court for that important event was a demonstration of the separation of powers involved, and the fact that after the appointment has taken place, the Justice is on his own or her own, and is no longer representing the political branch of the government. ...
President Reagan, when Warren Burger retired and William Rehnquist became Chief, and Justice Scalia was appointed they had the swearing-in at the White House. They also had a second ceremony at the Supreme Court. And also, after that, when Justice Kennedy was appointed, the first ceremony took place at the White House and not at the Court. And I was troubled by that as incorrect symbolism of the division of power between the separate branches.
So when the following four nominees were installed, with the same procedure, going at the White House, I did not attend the ceremony when David Souter or Clarence Thomas or Ruth Ginsburg or Stephen Breyer was installed. I thought that we should make a change in that regard. And because I didn’t, that fact that I didn’t go, I think will suggest to you I felt rather strongly that there is important symbolism in the way in which this terribly important oath is administered and the place in which it’s administered.

Stevens did go to the White House in 2005, when as the senior Justice following the death of Chief Justice William H. Rehnquist, it fell upon him to administer the oath to Roberts. But his concession then did not ease his mind. Stevens told his Newseum audience that he had raised the issue publicly

because I’m hopeful that in the future, Presidents may consider the importance of coming to the Court on this occasion, and drawing the very fine and important line between the appointment process, which is political in character and involves the exercise of discretion, and the very separate status that is created after the appointment process has taken place.

Two days after the appointment process (prior posts) ended with the Senate's 68-31 confirmation of Sotomayor, that "very fine and important line" is back in place, a welcome Presidential recognition of the federal judiciary's independence from the political branches.

It is on such niceties that the rule of law rests.

Legal realism renewal

"Experience," not "change," was the password in the announcement of Court of Appeals Judge Sonia Sotomayor (left) as nominee to be the next Justice of the U.S. Supreme Court.
Both the judge and President Barack Obama focused on the 1st word during yesterday's announcement (video clips below; Obama's remarks here; our colleague Tom Goldstein's superb analysis of the hearings to come here). (photo credit)
No need, really, to talk about the 2d word, change. All knew the media would not be able to resist shoehorning Sotomayor into identity niches -- stressing that if confirmed she'll be the 1st Latina and the 3d woman ever on the Court. (The media are less likely to mention the no-change aspects of her nomination -- she'd become the 9th former federal appeals judge, the 8th Ivy Leaguer, the 7th Eastern Seaboarder, and 6th Roman Catholic on the current Court.)
And so the emphasis is on experience. Experience includes Sotomayor's service on the 2d Circuit since 1998 (prior IntLawGrrls post), on the U.S. District Court in Manhattan from 1992 to 1998. And it also includes her gripping life experience as one who, raised by a widowed mother in a Bronx housing project, went on to a summa career at Princeton and Yale Law and in the public- and private-sector practice of law. Thus Obama invoked a legal axiom:

For as Supreme Court Justice Oliver Wendell Holmes once said, 'The life of the law has not been logic; it has been experience.' Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live. And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

The quoted line comes, of course, from the 3d sentence of Holmes' 1880 Harvard lecture on liability, published as The Common Law a year later. The line distills much of what's come to be called legal realism, the view that judging entails something more than unvarnished adherence to formal law. Holmes' lecture thus proceeded:

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

For decades this reasoning had much currency in American legal circles. Then, in the late 20th century, formalism revived. Prized were judges who professed to apply the law only as it was -- to paraphrase the proclamation of then-nominee John G. Roberts Jr., to put aside Holmesian "prejudices" and call 'em as they saw 'em.
No less than Roberts had in 2005, yesterday Sotomayor pledged allegiance to the rule of law:

I firmly believe in the rule of law as the foundation for all of our basic rights.

No surprise there. Nothing less ought to be expected of a Justice. What was different was this: Sotomayor coupled that pledge with another,

to 'never forget the real-world consequences of my decisions on individuals, businesses and government.'

These confirmation hearings augur a return to a richer understanding of the rule of law.

A D.C. inauguration story

The video above tells all about how this IntLawGrrl witnessed the swearing-in of the 44th President of the United States: by radio, the same medium by which Americans heard Calvin Coolidge take the oath 8 decades ago.
It wasn't supposed to have been quite like that.
The day began in pitchblack morning (right), when IntLawGrrl Stephanie Farrior and I hopped the Red Line toward the Mall. Stephanie got off at Metro Center to find a place close to a Jumbotron. I got off at Judiciary Square as instructed by the purple ticket (left) I possessed. All "purple people," as we came to call ourselves, were steered into a tunnel (below). There thousands of us spent more than 3 hours, emerging only to find that the purple gate had not opened and none of us would get in. We could see little more than the spire of the Capitol, and could hear nothing.
Thank goodness for the 1 among us who'd had the good sense to bring a transistor. Clustered around her at the intersection of Louisiana and C, we heard a musical interlude, then the oath that Chief Justice John G. Roberts Jr. administered to Barack Hussein Obama, and then the speech. The sounds alone brought smiles even to the faces of the purple dispossessed.

Alien Tort action update

As I've written, in Sosa v. Alvarez Machain, the Supreme Court did not entirely rule out bringing suits against transnational corporations (TNCs). Nor did it exactly rule them in: it stated that when creating causes of action for violations of international customary human rights norms, judges must consider the international consequences of their actions. And their example of a questionable case was the one then pending before the District Court in New York against numerous TNCs claimed to have participated in or contributed to apartheid in South Africa through their operations there. Following the State Department's recommendation, that court then dismissed those cases. The 2nd Circuit Court of Appeals then reinstated them, remanding for trial on an "aiding and abetting" theory. With the support of the Justice Department, defendants appealed to the Supreme Court, seeking to put an end to the case. But the Court lacked a quorum of six to take the case--four Justices of the Supreme Court have investments in some of the companies involved, so the 2nd Circuit decision stands and the case will go forward.
Meanwhile back in January, Chief Justice John Roberts denied a request by Exxon Mobil to halt evidence gathering in a case brought against it by Indonesian villagers. Exxon then sought an immediate appeal to the D.C. Circuit because the District Court judge had not dismissed the case in its entirety. When the issue of Exxon's right to an immediate appeal came before the Supreme Court earlier this month, Solicitor General Paul D. Clement urged denial: the District Court had accepted that pursuing claims brought under the Alien Tort Statute against Exxon regarding its use of Indonesian military personnel as security guards would cause foreign policy complications with Indonesia, one of the US's allies in the "war on terror." It therefore dismissed them, and dismissed the case against Exxon's Indonesian partner, a company owned by the Indonesian government. All that remains of Exxon Mobil, et al., v. Doe I are state common law tort for wrongful death, battery, arbitrary arrest and detention, etc. (Thanks to Scotusblog for the head's up on these.)
Will these cases cancel each other out? Will they settle, as did Unocal, thereby depriving all concerned of a judgment on corporate liability for violations of human rights (torture or summary execution as opposed to battery or wrongful death)?

Texas judge rebuffs Mexico's lawyer, sets execution date in consular access treaty case

Harris County, Texas, Judge Caprice Cosper (right) has set August 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in Medellín v. Texas was Article 36(b) of the 1963 Vienna Convention on Consular Relations, which requires law enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts here). The enforceability vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In Medellín -- involving a death row petitioner who, like many persons arrested in the United States for decades after the U.S. joined the treaty regime, never was advised of his consular-access rights -- the Supreme Court was called upon to consider:
► Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. United States (Avena) (2004)?
► Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the Court decided both. Treating the latter question 1st, Chief Justice John G. Roberts, Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes" -- in telling a constituent state what to do, the President had violated the Constitution. The dissent of Justice Stephen G. Breyer relied on the earlier view of non-self-execution doctrine. But to no avail; Breyer was joined only by Justices Davis H. Souter and Ruth Bader Ginsburg. (Margaret E. McGuinness' ASIL Insight here; prior Convictions posts on the decision here and here.)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing Medellín's attorneys -- Sandra Babcock (left), Clinical Associate Professor of Law and Clinical Director, Center for International Human Rights, Northwestern University School of Law, Donald Donovan of New York's Debevoise & Plimpton -- sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said; Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
Their arguments did not sway Judge Cosper, who reportedly "kept a hangman's noose over her office door" when she was a "death penalty prosecutor" in the Office of the Harris County District Attorney. At this week's hearing Cosper, elected to the bench in 1992, denied defendant's request to let the legal adviser to the Mexico's Foreign Minister speak with these words:

'I did not intend to hold a hearing. I did intend to set an execution date.'

One suspects that this was not the "further appropriate action by the State of Texas" that Justice John Paul Stevens had in mind when, agreeing with Breyer's view of the non-self-execution doctrine but disagreeing that its threshold had been met, he concurred in the Court's judgment in Medellín.

(Cross-posted on Slate's Convictions blog)

On May 5

On this day in ...
... 1985, President Ronald Reagan laid a memorial wreath at a cemetery in Bitburg, Germany (right). The furor that ensued -- among those buried in the cemetery were many Nazi SS officers -- prompted Reagan to push for ratification of the Convention Against Genocide. (An internal memorandum sympathetic to ratification opponents, yet ultimately recommending ratification for geopolitical reasons, was penned, as I've written (pp. 1345-46), by Department of Justice lawyer John G. Roberts, Jr., now Chief Justice of the United States.) U.S. instruments of ratification were deposited on Nov. 25, 1988, 2 weeks shy of 40 years after the United States 1st signed the treaty.
... 1892, Dorothy Annie Elizabeth Garrod (below left) was born in Oxford, England. Following studies in archeology at Newnham College Cambridge and Oxford University, Garrod launched a distinguished career in the field, conducting fieldwork through Europe and the Near East. At the Mount Carmel caves in what is now Israel, she became the 1st person to find a Neanderthal skeleton outside Europe. Garrod "also was a pioneer for women": in 1939 she became Cambridge's 1st woman professor, at a time when women were not permitted to obtain degrees there. Later she was the 1st women to win the Gold Medal of London's Society of Antiquaries. Garrod died in 1969.

Comparative Courts 101. Prof: Ginsburg, J.

Justice Ruth Bader Ginsburg (right) gave a no-doubt-unexpected lesson in comparative judicial studies during a lecture last week at an Atlanta synagogue. In "The Role of Dissenting Opinions," she noted that the U.S. Supreme Court's "practice of revealing dissents ... is hardly universal." Describing "civil law tradition that holds sway in Europe, and in countries once controlled by a continental power," and in the European Court of Justice, she said:

[C]ourts issue a collective judgment, written in an impersonal style. The author of the judgment is neither named nor otherwise identifiable. Disagreement, if it exists, is not disclosed. That pattern prevails without exception in French tribunals ....

In contrast, in the

British common law tradition ... there was conventionally no 'opinion for the court; disposing of a case under review. Instead, the judges hearing the matter composed their own individual opinions which, taken together, revealed the court's disposition.

Those opposite poles have shifted somewhat, most notably in the "European Court of Human Rights," which "publishes signed dissenting opinions," she said.

Ginsburg then turned to the "middle ground" position of the U.S. Court. Early on it,

like the House of Lords, Britain's highest tribunal, issued seriatim opinions. Each Justice spoke for himself whenever more than a memorandum judgment issued. But John Marshall, ... Chief Justice..., thought that practice ill-advised. In its place, he established the practice of announcing judgments in a single opinion for the Court, which he generally wrote himself. Opinions that speak for the Court remain the custom today. But unlike courts in civil law systems, and in line with the British tradition, each member of the Court has the prerogative to speak out separately.

Though she allowed that "[w]hat is right for one system and society may not be right for another," Ginsburg made clear that the practice of dissenting is right for judges in the United States. Thus did she set herself expressly at odds with Chief Justice John G. Roberts' stated preference for unanimity, and thus did she defend the 2 instances last Term (1, about which we've posted, was the abortion case Gonzales v. Carhart) that she took the rare step of announcing her dissent from the bench.