Recently, the NRA announced that it would “score” the Sotomayor vote in determining where each lawmaker stands on the NRA’s pro-gun agenda, a curious decision since Judge Sotomayor’s entire record on the Second Amendment is consistent with mandatory Supreme Court precedent.  Since then, the NRA launched a smear campaign against the judge, accusing her of “deliberately misread[ing] Supreme Court precedent” in order to undermine the NRA’s pet issue.

The reality, of course, couldn’t be further from the truth.  Even a Seventh Circuit panel, which was dominated by ultra-conservative Judges Richard Posner and Frank Easterbrook, sided with Sotomayor–agreeing that only the Supreme Court has the power to overrule its longstanding precedent holding that the Second Amendment does not apply to the states.

Nevertheless, there was one outlier court, the Ninth Circuit, which had disagreed with Sotomayor’s decision and claimed that it possessed the unilateral authority to act contrary to the Supreme Court’s longstanding rule.  That case, Nordyke v. King, was the centerpiece of the NRA’s claim that Sotomayor somehow misread the law.  There’s only one problem for the NRA, as of today Nordyke no longer exists.

This is because the Ninth Circuit announced that they will hear Nordyke “en banc,” meaning that the case will be reheared by a larger panel of judges than the original three-judge panel which initally decided that case.  En banc rehearings also have the automatic effect of vacating the original panel’s decision–casting that panel opinion aside as if it no longer existed.

Of course, it’s impossible to know for certain what the en banc panel will do after it hears the case, especially because the Ninth Circuit’s own rules add a bit of a chaos factor to the analysis.  Typically, when a court of appeals agrees to hear a case en banc, every active judge on the court participates in the decsision.  Because the Ninth Circuit has more than two dozen active judges, however, en banc panels in that circuit normally only include eleven randomly selected judges.  Accordingly, even if only six of the Court’s twenty-seven judges agree with the NRA, it is mathematically possible for an en banc panel to take the NRA’s view of Nordyke.

Nevertheless, because an en banc panel is only called when a majority of the court’s active judges agree to reconsider a case, the overwhelming majority of en banc decisions disagree with those of the three judge panel.  In other words, it is more likely than not that the Ninth Circuit will reach the exact same result Judge Sotomayor did; and the NRA’s case against Sotomayor will lose it’s only half-decent argument forever.

There is “no excuse” for fact that conservatives are stalling many of President Obama’s top legal nominees, said Senate Judiciary Chair Pat Leahy (D-VT) at a committee hearing today.  Not one of President Obama’s judicial nominees has been confirmed by the Senate, and the nominees awaiting a floor vote include:

[F]our nominees for top Justice Department jobs, the nominee to chair the U.S. Sentencing Commission, and nominees for the U.S. Courts of Appeal for the 2nd, 4th, and 7th Circuits. . . .  Some of the nominees, such as Dawn Johnsen to head the Justice Department’s Office of Legal Counsel, have drawn threats of filibusters from Republicans. But others, including Thomas Perez to lead the Justice Department’s Civil Rights Division, are largely non-controversial. In all cases, senators haven’t come to agreement to bring them to a vote.

Much of the right’s motivation for obstructing these nominees can be summed up in two words:  floor time.  Absent unanimous consent from all senators, no issue may be considered by the full Senate unless it is given time on the Senate floor for debate. Although such a debate can be cut off by a cloture motion — a vote receiving the support of 60 senators — such a motion itself consumes floor time. Thus, by indiscriminately objecting to President Obama’s nominees, a single senator can effectively force the Majority to choose between confirming essential government personnel or advancing health care reform, cap and trade, the federal budget or anything else on the Senate’s agenda.

But right-wing hopes that Obama will fail only partially explain conservatives’ strategy to keep the President’s nominees off the federal bench.  In truth, the far right has rallied behind seizing the judiciary to accomplish right-wing ends ever since they began dotting the South with “Impeach Earl Warren” billboards to protest desegregation.  More recently, the Republican-controlled Judiciary Committee gave a single senator authority to obstruct any one of President Clinton’s nominees–a power segregationist Senator Jesse Helms (R-NC) used to block every single nominee from North Carolina.

During George W. Bush’s Presidency, however, the right hummed a different tune.  Suddenly, senators lost their power to veto nominees, and battering-ram tactics like the “Ginsburg Rule” and the “Nuclear Option” entered the political lexicon.  With a rubber-stamp Senate in his corner, President Bush confirmed some of the worst federal judges since the Hoover Administration; judges like Janice Rogers Brown, who believes that the New Deal is unconstitutional and the Social Security is “cannibalism;” Jeffery Sutton, who devoted much of his career to attacking Medicaid and immunizing state employers from civil rights law; and J. Leon Holmes, who once wrote that a “wife is to subordinate herself to her husband” and “place herself under the authority of the man.”

Moreover, conservatives have long understood the need to appoint young, up-and-coming attorneys to the courts in order to create a deep bench of future Supreme Court nominees.  So far, the average age of President Obama’s nominees is 55, five years older, on average, than the men and women given lifetime appointments by George W. Bush, and most of the names on Bush II’s “short list” of potential SCOTUS nominees were nominated by Reagan or Bush I when the nominees were in their 30s or early 40s.

In other words, the right has long followed a strategy of easing their own judges through the Senate, bottling up progressive nominees, and making sure that their team simply outlives ours.  The result is a judiciary that is both dominated by conservatives and free to impose a radical vision on the law.  If this trend is ever going to be reversed, the Senate needs to take up Leahy’s call to confirm Obama’s nominees right away.

The last Supreme Court Term was a disaster for the American worker, with workplace anti-discrimination law taking an especially hard beating since the Court convened last October.  The good news, however, is that momentum is building for a Lilly Ledbetter-like Congressional override of one of the Court’s most egregious recent decisions, Gross v. FBL Financial Services.

In Gross, the Court not only stripped many older Americans of their right to be free from age discrimination in the workplace; it thumbed its nose at a 20 year-old precedent protecting workers from employment discrimination, explaining itself simply by saying that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” Translation: the right-wing controls the Court now, so they’ll do whatever they want.

Shortly after Gross was handed down, Senate Judiciary Chair Pat Leahy (D-VT) criticized it for “disregard[ing] and ignor[ing] the plain reading and common understanding” of the Age Discrimination in Employment Act.  House Education and Labor Committee Chair George Miller (D-CA) went even further, promising to hold hearings on whether Congress should overrule Gross.  Last week, a news site for corporate attorneys warned that a Gross override could be in the pipe.

Although health care and the Sotomayor nomination are currently monopolizing Congress’ attention, there is no good reason why a Gross override shouldn’t be an easy lift in the coming year–especially because the economic downturn has created an unexpected constituency for a Gross override: senior corporate executives.  With profits shrinking, many businesses are looking to cut their most expensive workers–generally their oldest and most experienced employees–possibly replacing them with younger, cheaper faces.  Thus, Gross creates the unusual circumstance where wealthy, powerful businessmen and women are lined up against their employers and their employers’ lobbyists, and thus can provide a heavy counterweight to corporate America’s inevitable efforts to keep Gross alive.

But even if the stars are aligning against one of the Court’s most ill-considered and arrogant recent decisions, the real question is whether Congress has the courage to think bolder.  Last Term alone, the Court handed down four major decisions cutting back on civil rights in the workplace, if Gross is the only case on the chopping block, that sends a clear message to the Roberts Court that its right-wing agenda will succeed 75% of the time–and that’s just within the past year.  Simply overriding Gross does nothing to correct the backlog of wrongly-decided cases handed down during the last several decades of conservative rule.

Rather than take a single potshot at a single bad decision, Congress should consider something in the vein of Senator Edward Kennedy (D-MA) and Rep. John Lewis’ (D-GA) Civil Rights Act of 2008, which would roll back nearly a decade of inexcusable Supreme Court decisions–decisions which left many recipients of federal funds free to engage in discrimination, immunized state employers from accountability for age discrimination, and allow employers to force their employees into a secretive, privatized justice system that overwhelming favors corporations.

It’s unquestionably good news that Congress is setting the wheels in motion to overturn Gross, but the American people must not be satisfied with a single drop-in-the-bucket.  The Court declared war on civil rights a long time ago, and Congress simply doesn’t have time to clean up the justices’ mess one piece at a time.

The judiciary has long been the go-to branch for corporations who don’t think they should have to follow the same laws as everyone else.  How else could health insurers achieve near total immunity from the law?  How else could employers strip women of their abilty to fight back against pay discrimination, and how else could the corporate sector create a biased system of corporate-owned courts that are virtually guarenteed to rule against consumers and employees?  No lawmaker could expect to remain in office if they endorsed such policies, but the Supreme Court, apparently, is shameless.

One big reason that the Court can give corporations such massive giveaways is because their work is buried in complex doctrines and legalese.  Voters would rebel against a bill which gave medical device makers total immunity from the law when their defective products kill someone, but when Justice Scalia writes that “the pre-emption clause enacted in the Medical Device Amendments of 1976, bars common-law claims challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administration (FDA),” most Americans don’t realize that he’s given the medical device immunity exactly the same immunity.

The mother of all the Supreme Court’s corporate-immunity-through-obfuscation cases may be this year’s decision in Ashcroft v. Iqbal.  Traditionally, the justices were very reluctant to kick people out of Court before they have the opportunity to at least gather evidence. Thanks to Iqbal, however, plaintiffs now must jump through a new, potentially insurmountable hoop before they can even seek evidence from their opponent.  As the New York Times explains:

For more than half a century, it has been clear that all a plaintiff had to do to start a lawsuit was to file what the rules call “a short and plain statement of the claim” in a document called a complaint. Having filed such a bare-bones complaint, plaintiffs were entitled to force defendants to open their files and submit to questioning under oath. . . .

The Iqbal decision now requires plaintiffs to come forward with concrete facts at the outset, and it instructs lower court judges to dismiss lawsuits that strike them as implausible.

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

Note those words: Plausible. Common sense.

Our readers who spent the Sotomayor hearings listening to progressives and conservatives alike claim that a judge’s duty is simply to follow the law will immediately see the problem with Kennedy’s standard; what on earth is “the law” when judges are told simply to obey their “common sense?”

The practical impact of Iqbal is that judges now have sweeping discretion to get rid of lawsuits simply because they don’t like them.  Moreover, because the federal bench dominated by conservatives–including George W. Bush’s judges, “the most conservative on record“–the rule in Iqbal grants conservatives even more authority than they already possess to substitute their personnal views for the merits of a plaintiff’s case.

To his credit, Senator Arlen Specter (D-PA) has introduced a bill which would overturn Iqbal and restore the old rule.  Until such a bill passes, however, powerful interest groups won’t have to argue the law to keep plaintiffs out of court; they’ll simply need to appeal to our right-wing judiciary’s sense of “common sense.”

The law does not enforce itself.  Americans entitled to health care or Social Security benefits depend on hearings and lawsuits to ensure that wrongfully denied benefits are paid.  Tenants who are abused by their landlords rely on courts to keep those landlords in line.  Corporations have no incentive to comply with laws protecting consumers unless they can be sued into compliance (which is exactly why they fight so hard to immunize themself from lawsuits. )

Moreover, as the Supreme Court recognized more than 75 years ago, “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law,” so such laymen cannot stand up for their own rights without a lawyer in their corner.  According to a report by the Center for Law and Social Policy (CLASP), however, “less than 20 percent of the legal needs of low-income Americans” are currently being met.  A void which effectively creates a law-free zone around millions of Americans.

As the report explains, the United States invests far less in legal services for the poor than other Western industrialized nations.  At the low end, Germany and Finland spent three times as much of their gross domestic product as we do on civil legal services for the poor.  At the high end, England outspends the United States twelve times.

Federal lawmakers deserve much of the blame for this state of affairs.  When President Reagan was elected in 1980, legal services achieved the modest goal of providing two attorneys for every 10,000 poor people in a given area.  Since then, the budget for legal services was slashed twice–first by President Reagan in 1982 and again by the right-wing Congress in 1996–and the federal government now spends, in inflation adjusted dollars, less than half what it spent on legal services for the poor in 1980.  To his credit, President Obama proposed a $45 million–or 15%–increase to federal funding for legal services in 2010, but this is merely a fraction of what is necessary to close the gap.

States and other sources provide significant funding for legal services as well, but one of the most important sources of funding for low-income legal services could be in jeopardy from the Roberts Court.

Presently, state-run programs known as “IOLTA” provide hundreds of millions of dollars a year to legal services programs nationwide.  In the 1990s, however, a right-wing legal organization known as the Washington Legal Foundation brought the audacious claim that this funding mechnism violates the Constitution.  Although the Supreme Court eventually upheld the IOLTA programs, the decision was 5-4, with Justice Sandra Day O’Connor casting the key fifth vote.  Ever since O’Connor was replaced by right-wing Justice Samuel Alito, the Roberts Court has made it its mission to seek out and destroy progressive 5-4 decisions where she was in the majority–so the IOLTA case could shortly be in their crosshairs.

Even with the IOLTA funds, however, the CLASP report makes clear that the poor have woefully inadequate access to counsel; and without such access many will be denied the rights and benefits the law entitles them to.  If Congress truly intends the laws it enacted to protect the poor to mean something, it will address this problem post haste.

Despite a week of race-baiting assaults by conservatives on the Senate Judiciary Committee, Judge Sotomayor emerged more-or-less unscathed from her confirmation hearings–even picking up several Republican votes in the immediate aftermath.  For all of their claims that Sotomayor thumbed her nose at white firefighters like Frank Ricci, the only thing to emerge from Sotomayor’s hearing is that she follows the law–as she did in the Ricci case–even when that law isn’t particularly popular.

Yet, even as the American people warmed to Sotomayor last week, the fact remains that her court’s decision in Ricci is unpopular.  Conservatives failed to convince the country that Sotomayor should have ignored a binding precedent in Ricci simply because they don’t like that precedent, but the tale of a dyslexic firefighter studying hard to earn a promotion resonated with many Americans.  So while Ricci’s story won’t hurt Sotomayor, many on the right–including the Judiciary Committee’s Ranking Member and much of the Supreme Court–are taking the long view, convinced that they can use this story to fulfill their decades-long quest to dismantle civil rights law.

This is why the recent, unjustified arrest of Professor Henry Louis Gates is such a huge blow to the right-wing agenda.  The right’s narative on Ricci fails if people simply believe that Frank Ricci was mistreated.  To succeed, the right must convince the country that Ricci’s tale is part of a pattern, that white men are routinely left with the short end of the stick, and that federal civil rights law is responsible for such perceived injustices.  The centerpiece of their narative is a belief that racism no longer exists, so laws designed to correct racism do nothing more than take potshots at white folks.

Professor Gates’ story gives this narative the lie.  White Americans–especially affulent white Americans–hear Gates’ story and they can’t imagine being arrested for breaking into their own home after giving police an ID card proving that they live there.  Such an arrest is so beyond the experience of American white men that we are forced to wonder whether a well-to-do, internationally-respected scholar could possibly have been treated the same way if he happened to be white.

Once one accepts that racism still plagues this country, the right-wing attack on civil rights law breaks down.  Contrary to the right’s claims, nothing in federal law requires employers to prefer mediocre minorities over qualified whites–indeed, such a law would unquestionably violate a long line of Supreme Court precedents interpreting the Constitution’s guarentee of Equal Protection.

What federal law does forbid is racism which pretends to be something else, such as a hiring test designed to disadvantage minority applicants or a screening process that “coincidentally” preferences applicants from predominantly white schools or communities.  Under existing law, employers may use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job.  Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

So civil rights law stands for the bizarre idea that people should actually be hired because of their fitness for a job, a principle which is so eminently sensible that it can only be attacked by selling America on the lie that racism no longer exists.  Professor Gates’ arrest reveals that lie for what it is, the latest interation of the right’s discomfort with civil rights.

During the Bush Administration, Texas’ two conservative senators set up a partisan commission which selected finalists to be nominated as U.S. Attorneys and federal judges in their state.  Since then, there’s been an election, but Senator John Cornyn (R-TX) thinks he should keep his unilateral authority to veto nominees that aren’t selected by his commission.

Cornyn said . . . “No applicant will go foward who does not go through the screening committee, because I’m not going to return a blue slip on them.” A blue slip is a Senate tradition whereby home-state senators register their approval or disapproval of judicial and and other law-enforcement nominees. To not return a blue slip, or to return a blue slip with a negative mark on it, is a way of signaling to the White House that the senator will object.

But Cornyn’s power to extort the President into naming his preferred nominees ultimately will depend on whether Judiciary Chairman Patrick Leahy (D-VT) gives Cornyn this power.

When Senator Edward Kennedy (D-MA) and then-Senator Joe Biden (D-DE) chaired the Judiciary Committee during the Reagan and Bush I Administrations, both allowed senators to block nominees from their home state–but only if both home state senators agreed to veto the nominee by failing to return a blue slip.  During the Clinton Administration, then-Chair Orrin Hatch (R-UT) changed the rules, allowing a single senator to unilaterally veto a nominee.  Segregationist Senator Jesse Helms (R-NC) used this authority to block every single one of Clinton’s nominees from North Carolina.

Yet when George W. Bush took office, Chairman Hatch decided to change the rules again.  During the Bush II era, nominees were moved forward despite objections from both of their home state senators.  So for our readers who are keeping track of this at home, the blue slip rules work something like this:

• When Reagan and Bush I were in office, both home state senators had to agree to block a nominee.
• When Clinton was in office, one senator could unilaterally veto a nominee.
• When Bush II was in office, everyone gets confirmed!

Now that President Obama is calling the shots, Cornyn wants to bring back the Clinton rules and restore his veto power over Obama’s nominees, but it frankly isn’t in his power to do so.  Under the Clinton rules, when a senator refused to return a blue slip, the consequence was that the nominee doesn’t get a hearing; but Chairman Leahy, not Cornyn, gets to schedule committee hearings.

In other words, Cornyn’s threat gives Leahy an opportunity to show whether he will give President Obama’s nominees exactly the same treatment afforded to President George W. Bush’s nominees, or whether the rules need to change yet again now that a progressive is in the White House.

This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Senate conservatives mostly repeated the same tired attacks that failed to gain traction earlier in the week, apparently thinking they could do the same thing over and over again and expect a different result.  As Sotomayor’s time in the hotseat comes to an end today, we’ll see if her opponents have actually figured out something new to say.  We will be updating this thread throughout the day.

6:37: Apparently, while your humble blogger was prepping for a radio interview, John McGinnis, a right-wing law professor railed against citing foreign law because it is just as unacceptable as citing the Bible or the Koran in an opinion.  Do we really need to make the same joke about Scalia, the Talmud and unelected Rabbis again?

4:07: Your humble blogger needs to step away for a moment.  Let him know what he misses.

4:01: Interesting exchange between Specter and the firefighters.  Specter asks the firefighters if they doubt Sotomayor’s good faith, both say that they are not lawyers and have no insight into that question, they simply testified because they were invited to tell their stories and they wanted to tell them.

3:58: Hatch is dwelling on the dead horse claim that all nine justices disagreed with Sotomayor in Ricci.

3:43: Klobuchar and Specter get in a politeness war over

3:40: Graham to Ricci: we are one generation removed from a time when the color of your skin and your last name were the only thing that mattered when you tried to get a job.  Now we are trying to find balance.

3:37: Lindsay Graham (!) pushes back against Chavez’s claim that Sotomayor has a record of racial politics, noting that the ABA reached a different conclusion.  Also notes that Republicans frequently pick people for political jobs because they are minorities, adding that doing so is just “good politics.”

3:32: Morgenthau (who is white) notes that he was a founding board member of PRLDEF.

3:24: CBS: “Sotomayor Confirmation a Done Deal“

3:22: Sessions: “It’s not like anyone is opposed to the Voting Rights Act, I voted for it.”  Sessions hasn’t always felt that way.  He once called the VRA a “piece of intrusive legislation.”

3:21: Sessions: “We’re going to do that crack cocaine thing we talked about.”  After laughter breaks out, he corrects himself, saying that he meant that he will support reducing the crack/powder disparity.

3:09: Peter Kirsanow, who just testified as a Republican witness, has some interesting views about internment camps for Arab-Americans.

3:06: Linda Chavez, a leading opponent of civil rights laws and Fox News commentator, opens her testimony with “I testify today not as a wise Latina woman.”  Keep it classy, Ms. Chavez.

2:58: Ben Vargas, the other firefighter, is now testifying.  Like Ricci, he emphasizes the essential role that firefighters play in protecting people’s lives, and his belief that he was judged on the basis of his race.  Like Ricci, we agree that Vargas is an heroic man who was caught up in circumstances he could not control.  He lost his case because of a binding precedent, not because of any verdict on his character.

2:50: Ricci’s remarks focus on the great deal of specialized knowledge that firefighters must have, his belief that the test that he took did a fine job of testing this knowledge, and how hard he worked to pass the test.  To be clear, no one doubts that Ricci, a man who spent his entire career running into burning buildings to save people’s lives, is a dedicated and heroic firefighter.  As a judge, Sotomayor’s job was not to decide whether Frank Ricci is sympathetic–he would have won that case in a walk–the issue is what the law requires.  In this case, Second Circuit precedent simply wasn’t on Ricci’s side.

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This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  Yesterday, Jefferson Beauregard Sessions III attacked Sotomayor for not behaving like other Puerto Ricans, and the right-wing Committee for Justice released an ad claiming that Sotomayor led a terrorist organization.  This morning features questioning by Senators Cornyn and Coburn, we’ll see if they can clear the low bar set by Sessions and the CFJ.  We will be updating this thread throughout the day.

5:49: And that’s a wrap . . . for today.

5:45: Cardin highlights one of Sotomayor’s major religious liberty cases, Ford v. McGinnis, in which she held that a prison could not deny Muslim inmates their First Amendment right to participate in the traditional meal celebrating the conclusion of Ramadan merely because prison officials determine that this traditional celebration was not sufficiently important to Muslims.

5:38: Cardin’s up, then recess for the day.

5:36: Broken Record Watch: Grassley still thinks that land developers are immune from statutes of limitations.  And, for the record, Mr. Didden made an enormous profit on this land because it was seized by eminent domain.  The only question in Didden’s lawsuit was whether he would get a massive windfall, or an awesomely massive windfall.

5:27: Sotomayor says that she has “no quarrel” regarding certain principles governing judicial neutrality, then cuts herself off, says “no quarrel sounds equivocal,” and fully endorses the principles.  This may be a subtle dig at Roberts and Thomas, who routinely said that they have “no quarrel” with decisions that they stridently opposed once they were confirmed to the Court.

5:22: Ok, Grassley is making the utterly insane argument that a case called Baker v. Nelson is a Supreme Court precedent that forbids the Court from mandating marriage equality.  Here is the entire text of Baker v. Nelson:

Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.

5:20: Your humble blogger is back.  Just in time to get hit with a fistful of crazy by Chuck Grassley, it seems.

4:28: Your humble blogger has to duck into a meeting.  No one say anything crazy while he’s gone.

4:24: Sessions doesn’t remember the Roberts and Alito hearings very well:

4:18: SCOTUSBlog makes a funny.  Sotomayor references a British study on the use of precedent.  SCOTUSBlog: Sessions “probably not happy with the reference to international law.”

4:11: Sessions doesn’t know what a board of directors does.  He again claims that Sotomayor authorized an organization she sat on the board of to take positions that he disapproves of, but the New York Times reports that she had virtually no role in shaping the organization’s litigation, and ABA rules forbid the board members of legal organizations from supervising an attorney/client relationship.

4:09: Shorter Broken Record Watch: Foreign Law.  Talmud.  Scalia.  Unelected Rabbis.

4:04: Irony Watch: Sessions complains about people who try to “promote agendas through the law.”

4:01: Broken Record Watch, Part II: Now Sessions is attacking Sotomayor for following a binding Supreme Court precedent regarding the Second Amendment.  Federalist Society darling Judge Frank Easterbrook disagrees with with Sessions.

3:55: Broken Record Watch: Sessions goes right to “wise Latina.”

3:52: Leahy makes an important point, a right means nothing if it cannot be enforced.  Sotomayor agrees.  Sadly, many of her future colleagues do not.

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This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  As expected, conservatives spent yesterday’s session claiming that Sotomayor is incapable of “impartiality,” especially in matters related to race.  We’re still waiting for them to cite an actual case suggesting that this claim is true, however.  We will be updating this thread throughout the day.

5:30: CAPAF’s statement on day two is up.  Here is a taste:

Today, at Judge Sonia Sotomayor’s confirmation hearing, Sessions wondered aloud how Sotomayor could have voted differently than another judge of “Puerto Rican ancestry.”

So it is very odd that conservatives would choose Sessions as their point person on the Sotomayor nomination. At best this choice is laughably tone deaf. At worst it shows that Senate conservatives wholeheartedly embrace Sessions’ views on race.

It is crystal clear, however, that Sessions is the architect of the conservative strategy against Sotomayor. In a campaign that echoes Lee Atwater’s infamous Willie Horton ad and Jesse Helms’ “white hands” ad, today’s attacks on Sotomayor have focused almost exclusively on race. Nevermind that conservatives have only uncovered one case in Sotomayor’s record, Ricci v. DeStefano, which supposedly supports their claim that Sotomayor is biased against white men. And nevermind that Sotomayor simply followed a 1984 precedent which is nearly identical to Ricci when she decided that case. Apparently conservatives believe the facts must take a backseat to race-baiting.

5:27: Hearing now in recess until tomorrow @ 9:30.

5:24: Leahy announces that questions will resume in the morning.  After every Senator has gone, the committee will go into a closed session to discuss Sotomayor’s FBI background check and similar information, and your humble blogger will take a much needed break.

5:11: Durbin quotes an unnamed SCOTUS justice who told him that “our system of correction and incarceration . . . has to be the worst” (Senator Webb has made similar statements about the need to fix America’s overincarceration problem).  Also takes aim at the crack/powder disparity, which one federal judge said “makes the war on drugs look like a ‘war on minorities.’ “  As originally enacted, the crack/powder disparity causes 5 grams of crack to be punished exactly the same as 500 grams of powder cocaine.

5:03: Durbin highlights case where Sotomayor upheld the death penalty against a constitutional challenge.  Apparently, even if she does disagree with the death penalty personally, as Graham claims, she also understands how to follow the law.

4:52: Graham hitting Sotomayor on a letter she signed in 1981.  Does he want to ask her about her sixth grade book reports as well?

4:50: Shhhhhh . . . Senator Grassley is sleeping.

4:47: Graham is now playing guilt by association, asking her about briefs written by attorneys at an organization she was on the board of.  Sotomayor responds, “I never read those briefs.”  Her primary duty as a board member was fundraising; she did not supervise their attorneys.

4:41: Graham: America discriminates against the poor white man by not letting him claim that they are better than minorities.

4:33: Graham calls Sotomayor a “bully” on the bench, claiming that lawyers “find you difficult and challenging.”  If Graham doesn’t like judges who bully, he must have voted against CJ Roberts, and he must hate Justice Scalia, right?

4:30: Graham: the existence of the Due Process Clause proves that your speeches are bad.  Huh?  Also claims that the Constitution contains “no written prohibition that you can’t pray in school.”  Of course the Supreme Court has never said that children can’t pray in school.  The Supreme Court has said that the government can’t tell them how to pray, and the “written prohibition” on official government prayer is the First Amendment, which bans laws “respecting an establishment of religion.”

4:27: Graham makes a funny: “Don’t become a speech writer if this law thing doesn’t work out.”

4:19: Dissenting in the judge-for-sale case, Justice Scalia cited the Talmud.  Why does Justice Scalia want us to be ruled by unelected Rabbis?

4:15: Sotomayor rebuffs conservative claims that she thinks that foreign law governs the U.S. Constitution.  No one believes that it does, but that hasn’t stopped Sessions from spreading his made-up claim that Sotomayor wants to turn the U.S. courts over to France.

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This week, the Wonk Room will live blog Judge Sonia Sotomayor’s confirmation hearings.  As we have previously reported, Republicans are prepared to make race the focus of their attacks on Sotomayor, with foreign law, the Second Amendment, eminent domain and opposition to reproductive choice rounding out their strategy.  We will be updating this thread throughout the day.

3:53: CAPAF’s statement on the first day of the hearing is available here.  It begins “Republican attacks in today’s confirmation hearings for Judge Sonia Sotomayor focused largely on their claim that Sotomayor lacks “impartiality” and is likely to decide cases based on her personal beliefs instead of the law. This line of attack is not surprising in light of their comments prior to the hearings, yet Republicans have still been unable to cite a single case where Sotomayor put her feelings before the law.”

3:02: Hearings in recess until 9:30 tomorrow morning.

3:00: Here is the meat of Judge Sotomayor’s statement:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

2:54: Sotomayor sworn in; begins statement.

2:51: Gillibrand takes a nice dig at Sessions.  Sotomayor’s leadership role in a civil rights organization, just like Justices Marshall and Ginsburg’s service with similar organizations, should not be used as a “disqualifier.”

2:37: Franken: Justice Thomas votes to overturn federal laws more than Justice Stevens and Justice Breyer combined.  Indeed, Thomas votes to second-guess Congress 65.63% of the time–more than any other justice.  The only Democratic appointees on the Court, Justices Ginsburg and Breyer, are the least likely to do so.

2:32: Another “abortion is murder” protestor interrupts the hearing.  Finish your beers.

2:30: The Al Franken Decade dawns.

2:25: Specter calls out CJ Roberts for saying in his confirmation hearing that he would led Congress decide how to remedy discrimination, then deciding that he knows better than Congress once he got on the Supreme Court.

2:21: Specter: Court has time for more cases.  Worries that there is too much uncertainty in the law because the Court only decides 60-70 cases per year–as opposed to the hundreds of cases it would hear each year in the 1800s.  Calls out the Court for not considering the merits of President Bush’s warrantless wiretapping and the rights of 9/11 victims.

2:17: Kaufman calls out the Supreme Court for putting a thumb on the scale in favor of corporations, citing preemption of progressive state laws, punitive damages and other corporate immunity cases as examples.

2:10: Klobuchar attacks the Supreme Court from the right, criticizing a recent decision (by Justice Scalia) which said that criminal defendants have a constitutional right to call lab techs who prepare evidence against them to the witness stand.

2:01: Leahy gavels the hearing back into session.  Senator Klobuchar now speaking.

12:38: Committee now in recess until 2pm.

12:38: Durbin: of the 110 justices to serve on the Supreme Court, 106 have been white males.

12:32: Another “abortion is murder” protestor interrupts the hearing and is removed.

12:23: Coburn opens his statement by praising Gonzales v. Carhart, which upheld a ban on certain kinds of abortion.  Later, he says “we want the system of law to be predictable,” but Carhart overruled a Supreme Court precedent which was only seven years old.  Apparently, the law only needs to be predictably conservative.

12:22: Coburn: “I thought this was your hearing and not Chief Justice Roberts’ hearing.”  Apparently he hasn’t been paying attention, this is Miguel Estrada’s hearing.

12:12: Whitehouse: “pretense” that Republican judges are modest and Democratic judges are “activist” runs counter to recent history.  CJ Roberts’ claim that judges should behave like “umpires” is “belied” by Roberts himself.  Quotes Jeffery Toobin’s observation that “In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. . . . Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”

12:06: Cornyn spends his statement ranting against judges who rule against the elected branches, then cites D.C. v. Heller, the recent Second Amendment decision, as an ideal case.  But Heller struck down a law enacted by the elected D.C. City Council.  Apparently, judicial modesty = doing whatever conservatives want.

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The Senate Judiciary Committee has released the list of witnesses who will testify at Judge Sotomayor’s confirmation hearings, thereby telegraphing much of their anti-Sotomayor strategy in the process.  Based on their lineup, it’s clear that Republicans plan to follow five lines of attack:

• Ricci

Front and center in the list of GOP witnesses is Frank Ricci himself, the New Haven firefighter whose promotion test results were set aside by that city, along with Ben Vargas, a lieutenant in the same fire department and Ricci’s co-plaintiff in his now-famous lawsuit.  The list also includes Peter N. Kirsanow, a George W. Bush appointee to the U.S. Commission on Civil Rights (and former witness in support of nominees John Roberts and Samuel Alito), and Linda Chavez, a former Reagan and Bush I Administration official and the head of a leading anti-civil rights organization.

From this list, it couldn’t be clearer that the Ricci case will be the point of the conservative spear against Sotomayor.  While Kirsanow and Chavez can be expected to testify like the GOP political operatives that they are, expect Ricci and Vargas to offer compelling statements.  By all accounts, both men were caught in unfortunate circumstances that they did not cause, and there is no indication that they are anything other than dedicated firefighters.  In other words, Republicans hope that the American people will be moved by Ricci and Vargas’ testimony and wonder why Sotomayor did not show more empathy for their circumstance.  The reason, of course, is that Sotomayor was following a binding precedent, and judges aren’t free to ignore the law simply because they are faced with compelling plaintiffs.

• Foreign Law

Recently, Senator Jeff Sessions (R-AL) gave a floor speech claiming–falsely–that some judges believe that foreign court decisions should govern U.S. law.  No one, including Judge Sotomayor, believes this.  Nevertheless, the witness list includes Neomi Rao, Nick Rosenkranz and John McGinnis, all right-wing international law professors who are likely to share Sessions’ delusion.  David Rivkin, an advocate of limitless executive power, may also testify on the subject of foreign law.

• Second Amendment

Next up are former NRA President Sandy Froman, along with David Kopel and Stephen Halbrook, both of whom work on Second Amendment issues for the right-wing Independence Institute.  All three of them will probably make the false claim that Sotomayor was hostile to the Second Amendment when she followed a binding Supreme Court precedent holding that the Second Amendment does not apply to the states.  Apparently, the law is optional when you are a conservative.

• Eminent Domain

Ilya Somin is a radical libertarian law professor who filed an amicus brief asking the Supreme Court to reverse Sotomayor’s decision holding that land developers must file their eminent domain claims within the three year statute of limitations.  The Supreme Court did not take Professor Somin up on this offer; apparently land developers have to follow the same laws as everyone else.

• Anti-Choice

Possibly the most interesting thing about the GOP’s witness list is that it only contains one anti-choice witness, Charmaine Yoest of Americans United for Life–additional evidence that cultural issues are losing their salience in American politics.

Additionally, the witness list contains one oddball, a management consultant named Tim Jeffries.  It’s unclear exactly what Jeffries has to contribute to this discussion.

In what may be the most unusual hit on Judge Sotomayor to date, the Washington Post has a long article today attacking Sotomayor because her opinions are too detailed:

During nearly 11 years on the federal appeals court in New York, Sotomayor has made herself an expert on subjects ranging from the intricacies of automobile mechanisms to the homicide risks posed by the city’s population density. Her writings have often offered a granular analysis of every piece of evidence in criminal trials, and sometimes read as if she were retrying cases from her chambers.

Legal experts said Sotomayor’s rulings fall within the mainstream of those by Democratic-appointed judges. But some were critical of her style, saying it comes close to overstepping the traditional role of appellate judges, who give considerable deference to the judges and juries that observe testimony and are considered the primary finders of fact.

The Post‘s hit on Sotomayor is ironic in light of the fact that conservatives have spent the last several weeks claiming that Sotomayor’s decisions aren’t detailed enough, but it nevertheless lacks merit.  Of course, Sotomayor should be praised, not attacked, for writing detailed and well thought out opinions; but the Post also reaches its conclusion by looking at a skewed sample of her decisions that includes the cases where a judge is most likely to be particularly detailed in drafting an opinion.

For starters, the Post only reviewed Sotomayor’s decisions in cases where at least one other judge disagreed with her and wrote a separate opinion.  But such cases are a terrible measure of how detailed a judge’s writing usually is.  When a judge is forced to defend their decision against a dissenting colleague, they virtually always flesh out their opinion considerably to rebut any claims made by the dissent.

The Post also cites a handful of cases where Sotomayor reversed a trial court because she disagreed with its findings of facts.  Although the Post is correct that appeals judges must give “considerable deference” to a trial judge’s fact finding, “considerable” does not mean “absolute.”  Rather, an appeals court is supposed to reject a trial court’s factual findings when they are “clearly erroneous.”  Moreover, it is exactly because of this high degree of deference accorded to a trial judge’s findings that appeals court decisions rejecting a trial court’s fact finding are often very long and detailed.  Because an appeals court must have a very good reason to reverse a trial court’s factfindings, a sensible appeals judge will go into great detail whenever they do so in order to explain why they are taking this unusual step.

Interestingly, the Post‘s piece quotes a former law clerk to ultra-conservative Justice Clarence Thomas, who explains that Sotomayor’s opinions are “extraordinarily thorough, and a judge would ordinarily be praised for writing thorough opinions.”  Perhaps the Post should have listened to this former clerk’s advice before it published an absurd attack piece slamming Judge Sotomayor for being too good at her job.

Refusing even to take “yes” for an answer, several anti-gay groups are attacking Judge Sotomayor for her decision in a case brought by an anti-gay pastor — even though Sotomayor ruled in the pastor’s favor.

In 2000, a right-wing pastor named Kristopher Okwedy paid to display this anti-gay billboard in a gay-friendly Staten Island neighborhood:

A few days after the billboard went up, Staten Island’s Borough President faxed a letter to the billboard company stating that “[a]s Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.”  The company took the billboard down almost immediately, and Okwedy promptly sued the Borough President, claiming that his First Amendment rights were violated.

Although a trial judge tossed the case out at the earliest stage of litigation, Sotomayor joined an opinion reinstating the case because she believed that the Borough President’s letter may have violated Okwedy’s free speech rights. Sotomayor recognized that even hate speech is protected by the First Amendment.

Instead of praising Sotomayor for ruling in their favor, however, anti-gay groups are now whining because she didn’t rule in their favor in exactly the way they would have liked best:

Tony Perkins, president of the conservative Family Research Council (FRC), slammed the appeals court’s opinion.

“The case raises troubling issues,” he said in a statement. “[T]he church was posting a purely religious message with no statements regarding public policy. The opinion suggests that Sotomayor may view the First Amendment through the lenses of political correctness.”

“Would a billboard proclaiming ‘gay pride month,’ which is offensive to many Christians, have been similarly treated?” Perkins said. “Sotomayor should be asked.”

Perkins is complaining that Sotomayor did not agree with Okwedy that his First Amendment rights were violated because the Borough President’s letter “demonstrates the City’s ‘official position of hostility toward the biblical viewpoint of homosexual practice and Okwedy’s religious beliefs.’”  Essentially, Okwedy claimed that the city cannot enact a policy which is contrary to his own religious beliefs.

But nothing in the Constitution says that people don’t have to comply with the law simply because they have a religious disagreement with it. Indeed, if Sotomayor’s court had adopted Okwedy’s theory of religious liberty, it would be unconstitutional to prosecute murders who kill out of a religious belief that God wants them to.

Tony Perkins should learn to take his court victories and enjoy them, rather than throwing a tantrum whenever judges refuse to write his own personal religious beliefs into the law.

Since 1971, federal law has prohibited both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications.  Yet, in an interview with Fox News, Senator Jeff Sessions (R-AL) suggests that Judge Sotomayor may be unfit for the bench because she once sat on the board of a civil rights organization that filed suits under this law:

Alabama Sen. Jeff Sessions told FOX News he assumes Sotomayor understood and supported the stance of a group called the Puerto Rican Legal Defense and Education Fund [PRLDEF] she advised in the 1980s that brought several race discrimination lawsuits for minorities who challenged jobs or promotions given to white employees.

“She participated in an organization or lawsuit, clearly participating actively as a supervisor of lawyers who actually litigated the cases, that is important,” said Sessions, the senior Republican on the Judiciary Committee evaluating Sotomayor’s nomination.

“There is no evidence (Sotomayor) objected the positions they were taking. The question is really — is this a philosophy that she has allowed to influence her decision making process on the bench?” he said.

It’s difficult to count how many things are wrong with Sessions’ statement.  For starters, as the New York Times reported last week, Sotomayor played little if any role in shaping on PRLDEF’s stances in litigation.  Indeed, the only example the NYT could find of a case that Sotomayor advised PRLDEF on was a single amicus brief challenging a law authorizing “preventative detention based upon a finding of undefined potential danger to the community” that was eventually struck down as unconstitutional.

Moreover, even if Sotomayor was involved in shaping PRLDEF’s litigation strategy on employment discrimination, it’s not clear why her role in enforcing a landmark civil rights law in any way undermines her fitness for the Supreme Court.  As the Wonk Room previously explained, conservatives have jumped on the sympathetic case of New Haven firefighter Frank Ricci to claim that the ban on hidden race discrimination is “a concept that invariably makes whites accountable for minority mediocrity.”  But this claim is flatly false.  No law requires employers to prefer mediocre minorities over qualified whites. To the contrary, federal law specifically permits employers to use hiring practices that have an adverse impact on minorities so long as minority applicants are screened because of their fitness for the job. Only employers who base their hiring decisions on arbitrary or irrelevant traits can be liable for discrimination.

Indeed, Sessions’ decision to embrace the right-wing attack on civil rights law says a whole lot more about Jeff Sessions than it does about Sonia Sotomayor. In 1986, Sessions’ nomination to the federal bench was rejected by the Senate because of Sessions’ deep seeded hostility to the very notion of civil rights:

• As a federal prosecutor, Sessions conducted a tenuous criminal investigation into voting rights advocates that registered African-Americans to vote–an investigation that culminated in an unsuccessful prosecution against a former aide to Dr. Martin Luther King, Jr.
• Sesssions also referred to the NAACP and the ACLU as  “un-American” and “Communist-inspired” organizations that “forced civil rights down the throats of people.”  When confronted about these statements at his confirmation hearing, Sessions reluctantly conceded that they “probably w[ere] wrong.”  Sessions, however, stood by his previous statement that the Voting Rights Act is a “piece of intrusive legislation.”
• An African-American attorney who once worked for Sessions testified that Sessions said that he “used to think [the KKK] were OK” until he found out some of them were “pot smokers.”  The same attorney also recalled being called “boy” by Sessions and being told to “be careful what you say to white folks” after Sessions overheard him chastising a white secretary.

So Sessions’ decision to embrace a new attack on civil rights law is unfortunate, but hardly surprising.  America has changed a lot since 1986, but Jefferson Beauregard Sessions III has stayed exactly the same.

(The following is the third in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

Several landmark civil rights laws, including ban on age discrimination, the ban on covert employment discrimination, and two essential provisions of the Voting Rights Act were cut back this Supreme Court Term, some of them drastically.  Worse, several of these decisions suggest that the Court’s most conservative members are eager to rip out the backbone of American anti-discrimination law.

• Thumbing Their Noses At Precedent

As the Wonk Room previously reported, the Court in Gross v. FBL Financial Services dramatically cut back on the right of older workers who are victims of employment discrimination to hold their employers accountable for such mistreatment.  Moreover, as Justice Stevens explained in his dissent, Justice Thomas’ 5-4 decision in Gross showed “utter disregard for . . . precedent and Congress’ intent,” because it flat out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross and reached the opposite result.

For his part, Thomas didn’t even try to justify his disregard for precedent, stating simply that “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.”  Apparently, precedents no longer apply whenever the Court’s five conservative members disagree with them.

• Standing At The Brink

In slight contrast to Gross, the Court also rolled several other landmark civil rights provisions, but it handed down significantly narrower opinions than the Court’s most conservative members would have liked.

The Voting Rights Act’s ban on “vote dilution” prevents states from drawing voting districts that divide minority population centers into multiple districts in order to prevent racial minorities from electing the candidate of their choice. Bartlett v. Strickland, however, drastically cuts back on this ban by holding that it only applies when a minority population center is sufficiently large that a compact voting district could be drawn in which minorities make up a majority of the voters. Where the minority population falls under this threshold, the ban now does not exist.

Similarly, Section 5 of the VRA requires voting districts who have historically engaged in discrimination to “preclear” any new voting rules with a federal court or the Department of Justice. Under the Court’s decision in NAMUDNO v. Holder, however, it is now much easier for districts to “bail out” of Section 5’s requirements if they can show that they have not recently engaged in race discrimination.

Federal law prohibits both overt discrimination in employment and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications. In Ricci v. DeStefano, however, the Court made the novel claim that the ban on hidden race discrimination may itself be a form of discrimination because it requires employers to think in terms of race. However one feels about the admittedly sympathetic case of Frank Ricci, the conservative justices went much further than they needed to in order to decide in his favor.  Apparently, even acknowledging the simple existence of race offends the Court’s conservatives.

Each of these three decisions cut back on progressive legislation, some of them drastically, but Bartlett rejected Justices Thomas’ urging to simply eliminate vote dilution claims altogether, and NAMUDNO and Ricci both expressly declined to consider conservative claims that Section Five and the ban on disparate impact discrimination are unconstitutional—despite pointed questions during the NAMUDNO arguments suggesting that a majority of the Court is prepared to invalidate Section Five.

Because NAMUDNO and Ricci avoided these constitutional questions, they remain unresolved. In light of Gross’ audacity, however, it is unlikely that the Court simply stayed its hand because of a principled decision to exercise judicial restraint—and far more likely that conservatives are still unable to find the fifth vote to strike down Section Five and the ban on disparate impact.

(The following is the second in a multi-part series on the Supreme Court’s recently-concluded 2008-2009 Term)

This Term featured a handful of contentious criminal cases which showcased both the justices’ unwillingness to recognize the challenges presented by new technologies, and their complete willingness to disregard longstanding precedents.  Moveover, taken together, these cases may foreshadow a sweeping assault on the rights of the accused.

• Turning Their Backs On The Twenty-First Century

As the Wonk Room recently reported, the Court’s 5-4 decision in District Attorney v. Osborne held that a potentially innocent man has no right to access DNA evidence that could exonerate him of a 1993 rape and kidnapping, even though he offered to pay for DNA testing himself–so it will cost the state literally nothing to let him do so.  According to Chief Justice Roberts’ opinion, the government can’t even be required to take cost-free measures to ensure that innocent people go free.

In Herring v. United States, another 5-to-4 decision, Roberts similarly disregarded the risks presented by poorly-maintained databases tracking arrest warrants and similar information. Since its 1961 decision in Mapp v. Ohio, the Court has understood that the Constitution’s safeguards against illegal searches and seizures mean nothing unless police suffer a consequence for their unlawful actions. Recognizing that virtually no jury would sanction a cop who unconstitutionally uncovers evidence of a crime, the Court endorsed the “exclusionary rule,” which requires illegally obtained evidence to be excluded from criminal trials. Herring, however, creates a new exception to this rule; when a police database falsely indicates that a person is the subject of an arrest warrant, the exclusionary rule does not apply to any evidence gained from an unconstitutional arrest of that person.

As Justice Ginsburg explains in dissent, failure to accurately maintain such databases could lead to countless innocent Americans being falsely arrested or detained. “Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases.” In one of the most absurd recent examples of what can happen when those databases are poorly maintained, Senator Edward Kennedy (D-MA) was once detained in an airport because his name appeared on an anti-terrorist “no-fly” list.

• Disregard for Precedent

The Court’s dismissive attitude towards the exclusionary rule is particularly disturbing in light of two decisions overruling precedents governing the rights of the accused. An unusually pro-defendant decision in Arizona v. Gant significantly rolled back a 28 year-old decision which held that police may always search the passenger component of a vehicle when they constitutionally arrest the vehicle’s occupant. And in Montejo v. Louisiana, the Court expressly overruled a 23 year-old precedent holding that police cannot initiate interrogation of a defendant after the defendant requests counsel at arraignment.

Viewed in light of the Court’s apparent willingness to abandon precedent, the new limitation on the exclusionary rule in Herring may portend significant future incursions on that rule. During Justice Samuel Alito’s first term on the Supreme Court, he cast the key fifth vote in favor of an opinion which ominously claimed that the exclusionary rule “has always been our last resort, not our first impulse.”  Herring is now the second case in four years to place substantial new limits on the exclusionary rule. Although it remains to be seen whether this pattern is merely a coincidence, these two cases could be the beginning of a much larger assault on the exclusionary rule. If they are, the most potent means of ensuring that police comply with the Constitution could cease to exist.