May 2009 Archives

Jay, I'm certainly aware that some of the most "liberal" justices on the Supreme Court agree with your arguments in some cases.  I even agree with your arguments in a few cases.  My question to you earlier, though, was why, in Establishment Clause challenges, you claim she is "very, very strict" (as indicated in the aforementioned television appearance).  Are there decisions she has made to lead you in that direction?  As I pointed out earlier she has rather moderate views in the few cases she has examined that touch on this important issue.  Am I missing something?

Of course, we all want America to know about her "judicial philosophy", but Judiciary Committee hearings, with time limits and political posturing by some Senators, is rarely a way to get a coherent view.  The best thing we have is the record before us. And, then, on occasion nominees just say what they need to say in order to get confirmed.  Remember, Clarence Thomas said he was a big supporter of the separation of church and state.  In turns out, he must have been supporting that construct from some other nation's (perhaps some other planet's) legal system.

Barry, the idea that Judge Sotomayor should be welcomed by conservatives because she has cited binding precedent from cases that I argued before the Supreme Court is absurd. The fact that a judge votes in my favor some of the time or relies on one of the cases I won before the Supreme Court does not mean that he or she does not hold a strict position on church-state separation or an expansive view of abortion or privacy rights.

 

All of the currently sitting Justices--including those who hold a strict view of church-state separation and a broad view of abortion rights--have voted in favor of my position on multiple occasions in the cases I've argued or been counsel of record before the Court. For example, Justices Stevens, Souter, Ginsburg, and Breyer and former Justice O'Connor all voted in favor of my position between 50% and 56% of the time. I've had several unanimous or 8-1 decisions in cases involving religious speech or pro-life expression in which these Justices agreed with my position, but there have also been cases where they rejected free speech or free exercise claims or held that some government action violated the Establishment Clause.

Sonia Sotomayor's judicial record is pretty sparse on many of the issue you and I debate on this blog, Jay.  This did not stop you from announcing on Fox News last Friday that she had an  "very very strict" position on the Establishment Clause.  What cases are you talking about?

As I read her record she is a moderate (at most) on religious liberty matters.  She was on a Second Circuit appeals panel that granted a New York City church the right to allow homeless persons to sleep on the institution's outdoor property.  She also ruled, as a district court judge, that a rabbi could erect a temporary, freestanding menorah in a city park because other groups had been allowed to erect similar items in the past.  She relied on two Supreme Court cases argued by a fellow named Sekulow. Admittedly, she did serve on a Second Circuit panel that affirmed a lower court's decision to uphold the firing of a substitute teacher who invited students to accept Jesus and led them in prayer.  Surely, you don't agree with the teacher's conduct.

Barry, today's nomination of Judge Sonia Sotomayor  to replace Justice David Souter on the Supreme Court of the United States will generate serious debate about the issue of judicial activism on the nation's highest court.

As we learn about Judge Sotomayor's background and judicial philosophy in the days and weeks ahead, it is important to determine how she views the Constitution and the rule of law. For example, will she embrace her past statement that the "court of appeals is where policy is made?" This nomination raises the issue of legislating from the bench and the appropriate role of a Supreme Court Justice.  We will learn more about her judicial temperament and philosophy in the days ahead.

I'm hopeful that the members of the Senate will ask tough questions about her judicial philosophy and temperament when the confirmation hearings get underway this summer.  The American people deserve to fully understand what kind of Justice Sonia Sotomayor would be on the nation's highest court for decades to come.

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Jay, just a few days ago I was a participant in an event on "church politicking" at the National Press Club here in Washington.  The event was reported by your friends over at the Christian Broadcasting Network.  The focus of that afternoon was principally on whether pastors do or do not have the right to endorse candidates in sermons.  The Tax Code suggests they do not--and I argued that was the correct position.

Today, the Washington Post reports that Liberty University, founded by the late Dr. Jerry Falwell, has just terminated the right of the Democratic student club to be recognized at the university.  Effectively, Liberty has declared itself a Democratic Party-free zone.  This is quite shocking, violating basic tenets of free speech, free association, and even religious liberty (can't you be a Democrat and religious?). 

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Barry, congratulations to your daughter on her graduation.  It is that time of year - my son just graduated from Regent University School of Law.   The New Jersey school sounds perfectly legitimate from a constitutional standpoint. The article states...

I think the first four people who responded to your last post claiming the cross isn't necessarily religious are completely on the mark, particularly emphasizing that all deceased war veterans are not Christian.  I'd be happy to leave them have...

Barry, you're missing the point of memorial crosses like those at the Mojave National Preserve,  Mount Davidson, Mount Soledad, and thousands of other places across the country. They are not designed to honor God but rather to memorialize the fallen...

Yes, Jay, there will be a major battle about the Mojave National Preserve cross next term in the Supreme Court. In fact, it is really two battles in one.  The first is whether the plaintiff in this case is even...

Barry, we're preparing to file an amicus brief in a matter of weeks in a case that I know you are closely watching at the Supreme Court.  The high court agreed in February to take the case of Salazar v. Buono,...

I don't want to get into a big debate here about the value, if any, of prayer.  However, this is the National Day of Prayer, so designated by an act of Congress back in 1952.  President Obama, as required by...

Barry, don't worry about it.  I really don't think we're going to see what you label as 'excessive outreach' to the Right by President Obama regarding his pick to replace retiring Supreme Court Justice David Souter. Sure, the President is...

I have been amused over the weekend by the "sky is falling" rhetoric of the Right about the impending retirement of David Souter from the Supreme Court. Curiously, Jay, many of your colleagues concede that they don't like Souter's record,...

Barry, the big news, of course, is the reported retirement of Supreme Court Justice David Souter.  The news comes just 102 days into the Obama Administration and sets the stage for President Obama to move to put his liberal stamp on...