ACA Open Thread

I am diligently producing billable work eagerly awaiting the airing of today's oral arguments on the ACA.  The C-SPAN link is here and of course SCOTUSBlog has extensive coverage.  This is the open forum that all you Anti-Injunction Act junkies have been waiting for.  Thoughts, rants, comments, links to other coverage of note...have at it.

UPDATE 1:  Five minutes into the coverage on C-SPAN3 and already a caller is complaining about the "New World Order" and "making us servants."  Noted media personality, Kent Brockman, captures the mood perfectly:



UPDATE 2: I remain mesmerized by callers to C-SPAN, sort of like people who watch daytime talk shows, I suppose. One caller, professing opposition to the law, proceeded to make all the arguments in the law's favor.

"First of all, no one is dying without health insurance, you can go to the hospital and get treatment."

Hmmm. You mean by adding to the overall cost of healthcare?

"Also, this law would affect Medicare and seniors."

You don't want the government to touch your government mandated health insurance?

Another caller, "I also think this will implicate euthanasia as panels will decide who receives care and who doesn't."

Currently, that's done by for-profit insurance companies (unless you're in Minnesota). In fact, anyone who has clerked or even externed for a judge has dealt with sometimes heart-wrenching ERISA claims against plan administrators who routinely deny coverage.

UPDATE 3: Lyle Denniston's recap of today's argument captures the heart of the circularity I was thinking about on my morning drive: If the ACA is so complicated that striking the minimum coverage provision would require killing the whole thing, then why is the minimum care provision not a valid exercise of Congress's necessary and proper clause?

Hot Coffee

I watched the HBO documentary "Hot Coffee" last night and wanted to flag it for anyone interested.  Pretty good, I have to say.  If I had to sum it up in one sentence, I'd say it's a good look at how voters' ignorance is exposed to pass laws that severely restrict consumers' access to the civil courts.  Just ask your relatives if they know what tort means.

My one small gripe is that it really ignores the flip side.  It paints jury trials as an ideal.  But there's no mention of the cost of conducting a jury trial and the enormous pressure to settle even when facing frivolous claims.  Anyway, watch it, it's good.  And if you're studying for the bar, there's plenty of issue spotting for you. 

As an aside, am I the only one in love with HBO:Go?

EDIT:  And during my morning reading I see that ATL has a rather lengthy post about the documentary as well. So an ex post H/T to them, I guess.

Shorter GOP Debate

Tim Pawlenty:  Why can't we have a strong, heavily government regulated / socialist / Communist / bubble-based economy like China or Brazil?

Michelle Bachman:  I have secret, breaking news:  I'm running for president. 

Newt Gingrich:  We need to return to the good times of banks lending indiscriminately and Enron lying through its teeth.  Things were great back then. 

We're not a developed country because of NASA.

Mitt Romney:  I hate myself for implementing a successful policy.  If Obama asked, I'd tell him not to do what Mitt Romney did.  The following words polled well so I'll just throw them out:  States. Power grab.  Repeal.

Ron Paul:  This country has been declining since 1933.

Herman Cain:  I have 0 qualifications for this office.

Rick Santorum:   ...

***

I'm done listening.  If you want to indulge yourself feel free to add your own summary of the debate in the comments. 

Liuuuuuuuuuuuuuuuuuuu*

I think this post by Adam Serwer on the imminent vote for cloture on the nomination of Professor Liu is probably spot on.  I'm not sure there's anything more to add to that, but I'm personally not very optimistic about Professor Liu's chances of confirmation.  I'm hopeful though that Democrats will use any filibuster of Professor Liu as leverage to push through other nominees, like how Bush pushed through Kavanaugh, Owens, etc.

* Reference.

SNARKY UPDATE #1:  Well here's a trivia question.  Which Bay Area law school is more likely to celebrate the appointment of one of its extended family members to the United States Court of Appeals for the Ninth Circuit?  Hint.

UPDATE #2 [and moving up]:  Well looks like it's over.  Would have loved to have seen Professor Liu on the bench, but again, I hope there's a silver lining that maybe creates an impetus in Chairman Leahy and Harry Reid to move along other stalled nominees.  [H/T:  Anonymous].

SOTU Drinking Game

Most SOTU drinking games involve the contents of the speech itself.  I personally like to drown the inanity of cable news coverage with alcohol.  So, for this year's SOTU, here are my proposals, and please feel free to add to this:

TAKE ONE SHOT AT...


Any mention of "gearing up for 2012" or like language
Any mention of "jobs killing"
Any mention of "business friendly"
Any mention of Paul Ryan as a "policy wonk."
Any mention of Ryan vs. Bachman as voice of the Republican response
Any mention of the absence of Justice Alito
Any mention of economic turnaround
Any definition of bipartisanship that is essentially doing what Republicans want
Any mention of "shakeup of President Obama's inner circle."

TAKE TWO SHOTS AT...

Any mention of the First Lady's attire
Any mention of Rahm Emmanuel
Any mention of approval ratings
Any mention of Sarah Palin
Any mention of Ronald Reagan

TAKE THREE SHOTS AT..

Any mention of the seating arrangement

DOWN THE BOTTLE IF...

There's actual substantive commentary beyond the vapid, superficial soundbites from the likes of David Gergen.


CNN sets the curve. 

Loose Lips Sink Ships

I am somewhat torn concerning Wikileaks. On one hand, I am an advocate of the free flow of information and the elucidation it provides. But on the other hand, I am a stickler for loyalty, and releasing thousands of confidential documents to an international audience is deplorable.

Just a brief background on the issue: Wikileaks is an organization which serves as an outlet to government insiders to release documents which would otherwise never see the light of day. Earlier this year, Wikileaks released almost 92,000 pages of classified documents concerning the Afghanistan War. More recently, Wikileaks leaked 250,000 classified diplomatic cables between various U.S. embassies and Washington, D.C. Recently (and seemingly* coincidentally) the editor in chief of Wikileaks, Julian Assange, was arrested in the United Kingdom pursuant to a warrant for extradition to Sweden on charges of sexual offenses. Assange refused to consent to the extradition, and a court in the U.K. denied bail. In response, other people affiliated with Wikileaks threatened to release all of the remaining diplomatic cables, which have thus far only slowly been made public after editors redact the names of persons who could come to harm if their names were released.

It would be one thing if the leaked documents uncovered some sort of deception of the American people, like the pentagon papers did, but these documents seem to be leaked merely for the sake of leaking documents. For example, one document reveals a list of potential terrorist targets around the world which could impact the United States. Revealing such information does not show impropriety on the part of the Government, but rather simply undermines its effort to keep our country safe.

I am curious about people’s thoughts on this issue. Specifically, how harshly should the persons who leaked the documents to Wikileaks be punished (if at all)? Does this rise to the level of treason (18 U.S.C. § 2381)? Or, conversely, do you think that the people leaking these documents are heroes?

The Arizona Ruling

NYT coverage here and Judge Bolton's opinion is here.  What really caught my eye was a line in the NYT report that legal experts think this ruling is headed for the Supreme Court.  Maybe I misread it, and they meant the case is headed to the SCOTUS, but I think they meant appeal of this ruling will end up in the SCOTUS.  With all due respect to these legal experts, I beg to differ. 

I managed to glance through Judge Bolton's opinion and she applied the correct four-step analysis for a preliminary injunction mandated by the Supreme Court.  For the uninitiated, in the past five years or so (give or take), the Supreme Court has been taking care to rigidly define the factors that courts must consider when granting equitable relief, in particular when granting injunctions.  These cases are often at the expense of the Ninth Circuit, the most recent example being the United States Navy Sonar case. 

With that in mind, and with my assumption that the Judge correctly applied the standard articulated by the Supreme Court, the Ninth Circuit will not reverse (and invite yet another Supreme Court review of its preliminary injunction jurisprudence).  Similarly, when the issue at this juncture is the application of the relevant equitable factors, there is no way the SCOTUS grants cert. 

Obviously this is a hot-button issue with lots of opinions that go beyond the relatively boring area of preliminary injunctions.  So consider this an open forum.

But Still...

When word of the arrest of Faisal Shahzad got out last night, I was tempted to write a post betting that within 12 hours, Rep. Peter King (R-NY) would be on the record calling the administration a bunch of pansies for Mirandizing a US citizen who has committed a crime.  Well, I was right.

Someone from the Right really needs to explain the following contradictions to me:

Government is the problem.  Therefore we can trust it to act as judge, jury, interrogator, and executioner.

Obama was born in a third-world country.  Therefore, the administration must act like one when it comes to crime and punishment.

The administration is turning this country socialist.  Therefore, we must borrow every confession-inducing method described by Alexander Solzhenytsin, make undesirables "disappear," trample on the principle of an independent court system, etc. etc. etc.  

Of course, the political discourse has shifted so far to the right, that when a member of the House thinks that we should ignore 200+ years of constitutional rights that originated from a fight against executive abuses, well no one really bats an eye.  WTF?  Either we're all being sensitized to abuses of power, or deep down we think it's ok when the suspect has a name that's hard to pronounce.

UPDATE:  Upon further reflection, I think it's a mistake on my part to focus on blowhard comments from King and McCain.  The real story here is the successful inter-agency law enforcement efforts.  Here are two posts from the VC on the topic:  a) tracking the identity of Shahzad and b) nabbing him before departure.

UPDATE 2:  You can listen to the ATC tape of Emirates Flight 202 being ordered back to the gate here.   I'm not an expert in the field, but I do enjoy listening to United's channel 9 whenever available.  Listening to this tape, it sounds like 202 is in the middle of taxiing to the runway for take-off.  The ground controller informs him that he will be first in line to take off and hands him off to the tower controller handling takeoffs.  The mental image I have is the plane is just about to reach the end of the runway to get final takeoff clearance.  Instead the tower controller orders a left turn back to the gate.  So how long before take off at that point?  I'd say one minute tops, but more like 30 seconds away from rolling down the runway.  But I think we could have ordered the plane to return if it was still in our territorial airspace.  Plus flight plans from NY to Europe and the Middle East call for flight over Canadian airspace.  Nevertheless, talk about cutting it close.  And imagine the stench in this guy's pants when the plane turned away from the runway and headed back. 

Boalt's Very Own Stalinist

Do not be fooled by the pleasant demeanor, pressed shirts, dapper necktie, or stylish shoes of my friend and co-3L Jonathan Singer.¹ The National Review has just confirmed what those of you who saw Jonathan's mustache over the winter break already suspected -- the guy is a Stalinist.

Stalinism is no laughing matter. Stalinism is the theory and practice of communism practiced by Joseph Stalin, leader of the Soviet Union from 1928–1953. According to Encyclopedia Britannica, via Wikipedia, via my iPhone, "Stalinism is associated with a regime of terror and totalitarian rule." That's right. Terror and totalitarian rule.

The most important thing to take away from all of this is NOT the untenable conclusion that an idle 3L with a laptop and a blog has gotten thoroughly under the skin of Ed Whelan whose resume includes the OLC, SCOTUS clerk, and counsel to the United States Senate Judiciary Committee. Don't be tricked into thinking that a conservative big-wig is being publicly infuriated by snide, 20-something bachelor 3L who has yet to finish his writing requirement. No, dear reader, the important thing to take from this is that Goodwin Liu should not be confirmed because Boalt 3L Jonathan Singer believes in the use of secret police, propaganda, and bureaucratic central planning of the economy.

Thank god for the blogosphere.

[Cue Glenn Beck style weeping for America . . .]

________________
¹ For the record, the Stalinist pre-approved the use of his full name in this post.

Go Butch Crazy!

I love how fringe conservatives have suddenly become constitutional scholars on health care, while they were silent on the war on terror. (And for the record, the fringe liberals are no worse; they'll cheerfully rake John Yoo over the coals while politely declining to notice that the President Obama has reserved the vast majority of President Bush's most constitutionally questionable polices.)

Both sides (the liberals with Yoo and the conservatives with health care) are making the same ridiculous mistake -- both sides assume that the way to resolve a controversial policy dispute is to constitutionalize the problem. In Idaho, the constitutionalization of the healthcare issue has gotten out of hand.

Enter Exhibit A.

Idaho's Governor Butch Otter (yes, that's really his name) was among the first to grab a pitchfork over the healthcare bill -- in fact, he ordered the Idaho AG to bring a constitutional challenge to the bill before it even passed.

That's fine. I don't think the suit has much merit, but I also doubt Butch's view is so outrageous as to warrant sanction. The courts can work it out, while the Governor beats on his talking points, conservative academics steal some attention, and academics from the other side try to steal it back. That adds up to a pretty normal day in America.

Enter Exhibit B.

It's Otter's next move that puzzles me. His next move has been to spearhead a campaign to pass a 28th Amendment to the United States Constitution, forbidding government-backed healthcare:

The Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizens who declines to purchase or participate in any health care insurance program.

So, which is it? Is he suing because the bill violates the Constitution? Or, is he proposing an amendment because the bill is valid?

I understand that constitutional rhetoric has political value, but I wish people would think these things through enough to at least assert the same points in the same breath. The healthcare bill is constitutional, or else it is not. I don't think a person can have it both ways . . . even if that person's name does call to mind a sexual ambiguous aquatic mammal.

The Healthcare Vote

So watching C-SPAN, I'm noticing a certain pattern among the callers who are opposed to the Bill.  First, there's a disconnect between their own personal situation and what the Bill actually accomplishes.  One caller complained about spreading Communism...because her husband is in the Army.  Sooooooo you're on government sponsored healthcare!!!  Great.  Second, a few callers complained about natural rights and what have you.  One caller was on his parents insurance.  I'm sure he will bitterly complain about having the "right" to stay on that coverage until the age of 26.  Another caller didn't have insurance at all.  The specific complaint was about the mandate.  Unfortunately, no one asked this 20-year old sage who will pick up the tab if he has an unfortunate accident requiring immediate medical attention.  Because I certainly want the freedom to operate a motor vehicle without a license and under the influence if we're not concerned about the burdens we impose on society.

I yield the balance of my time to the commenters.

RUNNING UPDATES:

1.  A senior citizen from Texas:  "We are not totalitarian."  Followed by complaints that some doctors will not see her because she has Medicare coverage.

2.  Caller confused why the House would amend the Senate bill using reconciliation.  "This is not how this country works.  I'm confused."  Well yes, this is not how this country works.  Normally, a majority would pass a bill and not be obstructed to this degree by the minority.  Please direct all confusion inquiries to Mitch McConnell.

3.  Still waiting for a caller to say, "Umm I have [Insurance Company X].  I love them to death.  No pun intended.  They jacked up my premiums and reduced my benefits, but hey, at least we have our natural rights and freedoms.  They also declined to cover my cancer treatment, but honestly I was just looking for a handout.  Viva Capitalism, and I oppose this Bill."

4.  "I'm not a constitutional scholar, but I feel that somewhere somehow this is against what America stands for." -- "Do you have health insurance?" -- "Yes" -- "Through?" -- "My husband."  

A Major Victory for JY

After four years, the report on JY and JB by the Justice Department's Office of Professional Responsibility has finally been released. As Patrick noted, we already had a post on a Newsweek report that the DOJ was not planning on referring JY and JB to their respective bar associations for professional misconduct.

But the released documents go much farther and are, quite frankly, astounding. The OPR Report finds that both JY and JB commited professional misconduct (JY, it claims, purposefully), and promises to notify the bar associations of the states in which they practice.

But the Report is accompanied by a 69-page memorandum by Associate Deputy Attorney General David Margolis, who writes,

For the reasons stated below, I do not adopt OPR's finding of misconduct. . . . OPR's own analytic framework defines "professional misconduct" such that a finding of misconduct depends on application of a known, unambiguous obligation or standard to the attorney's conduct. I am unpersuaded that OPR has identified such a standard. For this reason and based on the additional analysis below, I cannot adopt OPR's finding of misconduct, and I will not authorize OPR to refer its findings to the state bar disciplinary authorities in the jurisdictions where [JY] and [JB] are licensed.

Margolis's criticisms of the report are partly conveyed in the following segment:

In a departure from standard practice and without explanation, OPR in its initial two drafts analyzed the conduct of the attorneys without application of OPR's own standard analytic framework. See http://www.usdoj.gov/opr/framework.pdf/. This departure was not insignificant. I have held my current position within the Department for nearly seventeen years. During that time, I have reviewed almost every OPR report of investigation. OPR developed its framework over a decade ago and to the best of my recollection has applied it virtually without exception since that time.

That's not all. The memo notes that OPR provided then-AG Michael Mukasey and then-Deputy AG Mark Filip with a 191-page draft on December 23, 2008, only 20 days before it intended to release the report publicly. While agreeing that the JY/JB memos contained errors, Mukasey and Filip so strongly criticized the substance and conclusions of the draft that they requested that their letter conveying these criticisms be made public if the OPR Report was ever publicly released.

The reason why this is a big deal is that Margolis, Mukasey, and Filip are hugely respected "lions" in the legal profession. Margolis was described by by Legal Times as "one of the Justice Department's most respected officials, a lawyer with sterling reputation earned over 42 years of service at the department." (For that quote and a countervailing view by Harpers, see here.) Before becoming Attorney General (in 2007), Mukasey was one of the most respected District Judges in the Southern District of New York. (I've recently seen a hearing in which a N.Y. State trial judge gave greater deference to a Mukasey opinion on a point of N.Y. law than it did to the theoretically binding opinion of N.Y.'s highest court.) Filip, too, was formerly a District Judge in the Chicago. According to the AP, "he was ranked first among federal judges in terms of integrity and professionalism in a 2006 poll of Chicago-area attorneys."

It's important to note here that none of these three are defending the judgement of either JY or JB. But their criticisms of the OPR Report are pretty striking. I hope to read both documents over the weekend and have some more substantive comments. In the meantime, loonies on all sides of the debate can vent their rantings here.

Kill Bart, Kill Bart

First, if you missed it on TV last night, please take five minutes to watch this clip from Colbert.

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Sarah Palin Uses a Hand-O-Prompter
www.colbertnation.com
Colbert Report Full Episodes Political Humor Economy

I have something of a soft-spot bordering on outright crush for the well-executed literary device.  (As an aside, I nearly jumped out of my seat when I saw this article in the latest issue of Southwest Airline's Spirit magazine about Warren Buffet's use of literary devices in his shareholder letters.) And the clip above borders on perfection in terms of executing satire--my personal favorite literary device.

As for Sarah Palin, today brings further news that she umm shall we say, didn't do her reading.  She's clearly in the Tyson Zone at this point, yet she's not quite dead politically.  It's a puzzle that I don't have an answer to.  How can someone so clearly incapable of governing memorizing three lines be mentioned in the same breath as the Lincolns, the Jeffersons, the Roosevelts,  and whoever else is on American currency.   Are we so desensitized that facebook ramblings ghostwritten by some newly minted College Republican out of some East Coast liberal arts college count as contributions to the political discourse?  Unfortunately, if this Vanity Fair blog post is any indication (h/t James), the answer is yes and American democracy is in deep trouble.  Read the whole thing, but the part that stood out for me:

Then there’s Sarah Palin, who, egged on by other intellectually malnourished “real Americans,” has said so many startlingly stupid things in the last few days, the comedic furnaces won’t be cooling down any time soon! She’s a dynamo of dumbassity! An inferno of idiocy! Yes, Ms. Palin, 2012 is almost in your grasp! Reach for the stars, get a map, find Iran, start another pointless war we can’t afford! Score!

And he uses alliteration and other devices.  Way to stick the landing.  Bravo!

Wow!

Just watch...no introduction needed.




Steve Benen compares this performance to Bart at the Model UN session talking about Libya:

He stood up, cleared his throat, looked at the blank page in front of him, and winged it.  "The exports in Libya are numerous in amount," Bart said earnestly. "One thing they export is corn, or as the Indians call it, maize. Another famous Indian was Crazy Horse. In conclusion, Libya is a land of contrast. Thank you."  None of this made any sense, but Bart couldn't just stand up and say, "I have no idea what I'm talking about because I'm unprepared." He had to say something, so he made up some silliness and got the ordeal over with as quickly as possible.  Every time I hear Sarah Palin try to answer any question on any subject, it immediately reminds me of Bart's classroom presentation.

I'd argue that Bart was slightly better prepared because the actual presentation begins with:

Skinner:  "OK, Libya...exports!"
Bart:  "Yes, sir, you American pig!"
Skinner:  [chuckle] "Nice touch."

Why is anyone with a working organ inside the skull listening to anything that this woman has to say?  This isn't like Dubya.  Sure he was a little rough around the edges, but no one doubted that he had the basics down.  Palin scares me.  Her followers scare me even more by constantly reminding me of this nation's dark moments brought forth by willful ignorance.  Which one?  "All of them." 

Robertson, You Are a Disgrace to Patricks Everywhere

If you have a pulse, you know that an estimated fifty- to one hundred- thousand people died in Haiti this week.

What deaths have already occurred were caused by the combination of a massive earthquake and dilapidated infrastructure, and what deaths have yet to occur will be attributable in part to lack of medical infrastructure in the impoverished country.

At least that's what people subject to the virulent message of mainstream media think. Evangelical broadcaster Pat Robertson is not one of those people. His liberation from the chains of reality allows him to see the quake as a "blessing in disguise," because it is punishment for Haiti's "pact with the devil" and an opportunity for them to come to God:

Something happened a long time ago in Haiti, and people might not want to talk about it. They were under the heel of the French. You know, Napoleon III, or whatever. And they got together and swore a pact to the Devil. They said, we will serve you if you'll get us free from the French. True story. And so, the Devil said, okay it's a deal.

Link here.

Pat Robertson is right about one thing. He is right that I don't want to talk about "Napoleon III, or whatever." I want to talking about helping those people, about international aid, and about saving what lives we can.

In the meantime, three words for Mr. Robertson: go to hell.

John Yoo Saves Half the Library from the "Fire"

I was sitting in the library Atrium when the fire alarm went off and of course I dutifully shuffled into the exit stairwell with about 30 other students. We descended a flight to the marked exit only to find said exit locked.

So, we turned around and marched back up, bumping into other students who were coming down. Right as I was about to re-enter the library proper, John Yoo burst through the door saying, "No, come with me this way. I have the key."

And just like that John Yoo saved us all from our hypothetical fiery death. It was awesome.

Anyway, more thoughts on the alarms.

Check out this scenario:

1. You know campus police are all busy over at the protests.
2. You know there're millions of laptops and other valuable shit at the law school.
3. You set off the fire alarm, run in while everyone's outside, and steal shit.
4. The man who came up with this theory sees someone younger looking and not dressed like a law student poke his head into an IP class that has just resumed. Perhaps looking for valuables?

Sneaky.

Also, I'm gonna try and get some live blog action down at Wheeler later assuming the rain doesn't dissuade me.

A Bit of Levity

The past couple posts have been, well, intense. To lighten to mood before finals (and tomorrow, for those of us in the know), here is a link to possibly the best dissent of all time. Now some of us feel that Chief Judge Kozinski is a great judge; others, the greatest. But we can certainly all agree that he is not controversial or otherwise abrasive. Feel free to post you favorite Kozinski opinions.















P.S. Students who "strike" are dumb.

Guess the Crazy Alaskan's Motivation

So, Palin resigning from her governorship has got to be one of the dumbest political moves ever, right? There has got to be something bigger underneath this news that has not been revealed yet.

So, I thought we could play a little game. Whoever manages to correctly guess why Palin really left gets . . . uh . . . the honor of being right. Yeah, I don't really have anything to give you. But you can brag to all your friends.

Anyway, my theory is that she's dropping the governorship to take a job at Fox News (thus all the talk about trying to effect change "outside of government"). Although, I'd assume we'd have heard some stories about negotiations going on. But I'm sticking to my guns.

Sotomayor Talking Points

I have a feeling this is going to get nasty. I know after the 2004 election, during some of the bleakest times for a Democrat, I was itching for a fight over Roberts. But after surveying the political landscape I regretfully realized the impossibility and inanity of such an act. Well, I think the GOP will do precisely the opposite because they just don't have anyone left who thinks rationally. All they have left is an angry base that is just seething and reeling from the thought of losing their guns and formal wear in the Oval Office.

Such a fight would make them look ridiculous and juvenile. The following talking points should explain why:

GOP Argument 1. Sen. Inhofe has already released a statement saying it's his job "to weigh her qualifications and character as well as her ability to rule fairly without undue influence from her own personal race, gender, or political preferences."

Talking Points:
-- Neither Republicans nor Democrats made any such offensive suggestion during the nomination of then-Judge Alito by accusing the Italian-American from New Jersey of possibly being biased in favor of mob bosses.

-- Both of President Bush 43's picks had service in Republican administrators. Why didn't Republicans raise concerns about their political preferences clouding their judgments?

-- See also Sen. Lindsay Graham quote below.

GOP Argument 2. A variation of argument 1, but be prepared for language implying "lack of intellect" or things along those lines essentially signaling to the base: "Hey, she's an AA baby."

Talking Points:
-- She has the same education credentials as Alito, longer judicial service than Roberts, and a more varied career than Rehnquist. By any measure, she is more than qualified to sit on our highest court.

GOP Argument 3: Liberal.

Talking Points:
-- Elections have consequences.
-- More specifically, the words of Senator Lindsay Graham during the Roberts Confirmation Hearings apply more than ever:

To me, the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well- qualified, strict constructionist to the Supreme Court and, in this case, to appoint a chief justice to the Supreme Court in the mold of Justice Rehnquist.

He's been elected president twice.

He has not hidden from the public what his view of a Supreme Court justice should be and the philosophy that they should embrace.

In my opinion, by picking you, he has lived up to his end of the bargain with the American people by choosing a well-qualified, strict constructionist.

You have been described as brilliant, talented and well- qualified, and that's by Democrats.

The question is, is that enough in 2005 to get confirmed? Maybe not.

Professor Michael Gerhardt has written an article in 2000 called "The Federal Appointments Process," and I think he has given some advice to our Democratic friends in the past and, maybe recently, about the confirmation process that we're engaged in today.

And he has written, "The Constitution establishes a presumption of confirmation that works to the advantage of the president and his nominee."

I agree with that. Elections matter.

We're not here to debate how to solve all the nation's problems. We're not here to talk about liberal philosophy versus conservative philosophy and what's best for the country. We're here to talk about you and whether or not you are qualified to sit on the Supreme Court, whether or not you have the intellect, the integrity and the character.

And it has been said in the past by members of this committee -- Senator Kennedy -- I believe it's recognized by most senators that we're not charged with a responsibility of approving justices if their views always coincide with our own. We're really interested in knowing whether a nominee has the background, experience, qualifications, temperament, integrity to handle the most sensitive, important and responsible job. And that's being on the Supreme Court.

If you're looking for consistency, you've probably come to the wrong place, because the truth of the matter is that we're all involved in the electoral process ourselves and we have different agendas.

*Note that the Democrats at the time seemed obsessed over the Senate's role in thoroughly weighing the nominee.

GOP Argument 4: Supreme Court [will/has] reverse Sotomayor in Ricci.

Talking Point:
-- And the Supreme Court reversed Roberts in Hamdan while he was sitting as the Chief Justice. So what? Frankly, that case had far more significance by defining constitutional limits to the executive war powers, as opposed to the more limited issue of firefighter exams.

GOP Argument 5: She wants to make policy based on her Duke commencement address.

Talking Point:
-- No. And in full context, even conservatives agree she is absolutely right. The Circuit Courts are the most important branch of the federal judiciary because they are the final arbiters ofu the vast majority of issues that arise in federal courts.

GOP Argument 6: She's still racist. See Berkeley Speech.

Talking Point:
-- No. See full quote. And with respect to taking statements out of context, see current Ranking Member Sen. Jeff Sessions during the Roberts hearings: "But as you have already seen, our confirmation process is not a pretty site. Time and again, you will have your legal positions, your predecisional memoranda -- even as a young lawyer -- distorted or taken out of context."

* * *
Feel free submit your anticipated GOP Arguments and talking points.

UPDATE: Here is Judge Sotomayor's full speech at Berkeley. I do not understand how anyone with 3 functioning neurons can take that statement as anything other than a tongue-in-cheek remark given the rest of the speech. Also, I didn't know she was a classmate of our own Prof. RM. And if RM's torts lectures are any indication, the statement was soaked with sarcasm.

Who Would Jesus Ban?

Liberty University (founded by evangelical and Teletubbie-hater Jerry Falwell) has banned the college Democrats student group, citing that the parent organization (the Democratic Party) contradicts the "moral principals" held by the school. These values clearly do not include freedom of speech and political beliefs.

I am curious to see if the anonymous commenters that equivocated disagreement with John Yoo's legal reasoning to the suppression of ideas are equally upset about this.

CNN article found here.