Melissa Rogers

Thought for the Day

Michael Kinsley says, "The more concerned you are to avoid saying anything wrong or offensive, the less likely you are to say anything inspiring or true." 

A Small Step in the Right Direction

"Two Democratic senators said today they're not happy with how the Senate Judiciary Committee conducts confirmation hearings for Supreme Court nominees."  Here's more from The Blog of the Legal Times:

As the committee prepared to vote on Sonia Sotomayor's nomination, Sen. Herb Kohl (D-Wis.) bemoaned what he called a "familiar pattern" in confirmation hearings. Nominees, he said, take the "path of least resistance" when they refuse to answer almost all of senators' questions about the substance of law.

"We cannot ask nominees to disclose how they would rule on cases that might come before them, but it is reasonable for us to ask their opinions on past Supreme Court decisions," said Kohl, the second most-senior Democrat on the committee.

Kohl, who supports Sotomayor's nomination, said his comments were not directed only at her, but at all nominees in recent years and at the process itself.

Sen. Russ Feingold (D-Wis.) said the process fails to educate either the public or the Senate about a nominee. It makes no sense, he said, that the only person in the United States who cannot express an opinion on recent Supreme Court rulings "is the person from whom the public most needs to hear it."

"These hearings have become little more than theater," Feingold said, "where senators try to ask clever questions and nominees try to come up with clever answers."

The report notes that "[n]either Feingold nor Kohl proposed specific changes," and we all know that moving from a diagnosis of the problem to a solution is the real challenge.  Still, it seems like a  small step in the right direction to have some Democratic Senators note defects in the process during the hearings of a nominee appointed by a Democratic president.

Judiciary Committee Votes on Sotomayor Nomination Today (Updated)

The Senate Judiciary Committee will vote on the nomination of Judge Sonia Sotomayor this morning at 10am.  An AP story previewing the proceedings is here.  According to the AP, both the NRA and Americans United for Life will include the vote Senators cast on the nomination in their annual scorecards:

The National Rifle Association, which was slow to announce its opposition to Sotomayor and initially hung back from threatening senators against voting for her, announced last week that it would "score" her confirmation vote, calling her "hostile" to the Second Amendment. That means the NRA will include the vote on Sotomayor in its annual candidate ratings, which heavily influence voters in key battleground states. . . .

The anti-abortion rights group Americans United for Life has also weighed in against Sotomayor, writing to senators urging a "no" vote and announcing that it, too, would include her confirmation vote in its annual scorecard.

The Washington Post has an effective take-down of the NRA's tactics here.  Part of its argument is that a double-standard is at work:

During his confirmation hearing, Chief Justice John G. Roberts Jr. refused to opine on whether the Second Amendment recognized an individual right because it was a live controversy. Justice Samuel A. Alito Jr. was not asked to share his views on the rights of individuals to keep and bear arms. The NRA did not oppose either nominee. The organization is wrong now to distort Judge Sotomayor's record, oppose her confirmation and threaten to use lawmakers' votes against them.

Some Hispanic lawmakers who support gun rights also wrote to the NRA to complain about this double-standard.  Of course, it's like shooting fish in a barrel to find hypocrisy in the confirmation process.  But this seems like a rather new variant that is especially glaring.

Meanwhile, the Washington Post is keeping a running tally of the announced intentions of Republicans on the nomination.  A vote by the full Senate is expected by August 7.

UPDATE: By a vote of 13-6, the Senate Judiciary Committee has voted to send the nomination to the full Senate.  SCOTUSblog has a write-up of the morning's proceedings.

IG of USAID: Agency Made Improper Use of Government Funds (Updated)

"The U.S. Agency for International Development funded programs that rebuilt Iraqi mosques and used biblical lessons to promote sexual abstinence in Africa, despite a prohibition on the use of taxpayer funds to support 'inherently religious activities,' according to a new audit by the agency's inspector general."  Here's more from the Washington Post's story:

USAID challenged the inspector general's findings in a written response, saying that the main goals of its programs in Africa and Iraq were secular in nature. The report focused on projects initiated from 2006 to 2007 under the Bush administration.

The issues in question have been complicated by legal ambiguities over whether the constitutional separation of church and state applies to programs that are designed to advance American foreign policy abroad. The inspector general's report noted that the Justice Department is currently weighing a request from the aid agency to determine whether its practices were legal.

The audit identified more than $325,000 in expenditures for the rehabilitation of four mosques in Fallujah, Iraq. It also cited concerns that the use of Christian stories in HIV/AIDS prevention programs in Africa could be seen as showing a "USAID-funded preference for Christianity."

As part of one faith-based abstinence program in Africa, officials conducted a session urging youth to memorize and recite Psalm 119:9, which says, "How can a young man keep his way pure? By living according to your word." Participants were then instructed to recite the passage's "key concept": "God has a plan for sex and this plan will help you and protect you from harm."

I assume the IG's report will be posted here soon, but it has not been posted yet. 

UPDATE: The IG report is here.

Advancing Common Ground on Abortion (Updated)

"Seeking elusive common ground on abortion, prominent activists and clergy on both sides of the debate are throwing their support behind a bill aimed at preventing unintended pregnancies and supporting pregnant women."  Here's more from the AP story on the bill:

At issue is the so-called Ryan-DeLauro bill — first introduced in 2006 and being reintroduced Thursday by Reps. Tim Ryan, D-Ohio, and Rosa DeLauro, D-Conn. Supporters range from abortion-rights activists to Roman Catholic academics who consider abortion an evil. . . .

[Rev. Joel Hunter, an evangelical megachurch pastor from Orlando, Fla., who opposes abortion and supports the bill] said the key to the bill is its breadth — appealing to liberals with proposals to prevent unintended pregnancies and to conservatives with provisions to support women who choose to carry unintended pregnancies to term.

There will be a press conference later this morning in Washington to release the bill and describe its provisions.  Along with many others, I have offered a brief statement of support for the bill.  I'll link to those statements and other materials once they are available.   In the meantime, here's a nice story from Time's Amy Sullivan on the legislation.  Let me also note that Faith in Public Life has a helpful blog post that fact-checks some false claims about the bill.

Taking new steps to prevent unintended pregnancies and support pregnant women and their families are excellent ways to improve lives.  They are also important areas of common ground for many who are often divided about the issue of abortion.  The fact that such a diverse group is coalescing around this bill demonstrates that people of good will can cooperate without compromising on their core beliefs in this area.  It also shows that, for many, it is no longer satisfactory to simply preserve arguments on these issues.  There is growing and broad interest in making progress, progress that will benefit women, children, and families.

UPDATE:  A four-pager on the bill is here and a one-pager is here.  The statements of support for the bill are here.  

ANOTHER UPDATE:  Via Katie Paris of Faith in Public Life, the audio of the press conference is here.

Housekeeping Notes

As I said a week or so ago, I'm back for limited engagements and the Sotomayor confirmation process is one of them.  I'll keep reporting on that process until the Senate vote occurs, even though there is hardly much drama left in that story.   Given the fact that blogging solely on that issue until then might begin to bore you to tears (if it hasn't already), I'm also going to blog about a few other items during this period.  After the Senate vote takes place, my plan is to suspend blogging until early October for coverage of oral argument in the Salazar v. Buono case. 

I know diving in and out of the blog for limited subjects and times is far from the best way to keep readers, but it's the only way I can blog for the next several months.  I still hope to return to more regular blogging down the road.  Thanks again for your patience.

NOTE: I've revised this post to make it clear that I plan to keep blogging through the full Senate vote on Sotomayor's nomination, which should occur on or before August 7.

Senate Judiciary Committee Schedules July 28 Vote on Sotomayor Nomination

"The Senate Judiciary Committee put off its vote Tuesday on Supreme Court nominee Sonia Sotomayor for one week amid objections from the panel's conservative Republicans, even as the judge's support among GOP moderates continued to grow."  The AP story is here.

Sotomayor's Response to Senators' Written Questions

Via SCOTUSblog, Judge Sonia Sotomayor's answers to written questions from Senators Sessions, Grassley, Kyl, Cornyn, and Coburn are here.  I've only had time to skim the questions and answers, but here's some of what I see so far: many questions on abortion and the death penalty; some on making law v. interpreting law; at least one on standing; and a couple of cursory ones on church-state decisions from Senator Coburn.  Here are the ones on church-state precedent:

Q: Do you have misgivings about the provision of educational materials and equipment to private schools under Mitchell v. Helms? [Note: This case involved the provision of direct government aid, in the form of educational materials and equipment, to private schools, including religious elementary and secondary schools.  The Court upheld the aid, but it fractured badly and there was no majority opinion.]

A: Mitchell v. Helms, 530 U.S. 793 (2000), is a decision of the Supreme Court and I accept it as precedent.

Q: Is Zelman v. Simmons-Harris settled law?  If not, why not? [Note: Zelman is a case involving an Ohio school voucher plan that included private religious and nonreligious schools.  The Court narrowly upheld the plan as constitutional.]

A: Zelman v. Simmons-Harris, 536 U.S. 639 (2002), is a decision of the Supreme Court and I accept it as precedent.

Senator Coburn was obviously trying to get at her views on government funding and religious institutions and the degree of deference she will give these controversial recent decisions.  She did not give him much of anything -- saying a decided case is precedent is simply stating a fact.  Although she did avoid saying that Zelman was "settled law," that does not necessarily mean much.   Unsurprisingly, she did not take the opportunity to praise or disparage either decision.

SCOTUSblog notes that the Senate Judiciary Committee is "scheduled" to vote on Judge Sotomayor’s nomination tomorrow today at 10 a.m, but it says it "is uncertain whether the vote will occur" then.

Don't Ask, Don't Tell

"For the first time in more than a quarter-century of Supreme Court confirmation hearings, no one asked the nominee about the court's principal test for disputes over the separation of church and state."  That's the lede of a story by Joan Biskupic in today's USA Today.  Here's more:

No one asked about an enduringly controversial decision that allows government to regulate campaign contributions.

In the end, Sonia Sotomayor's reference to TV's Perry Mason spurred more questions than her reference to Marbury v. Madison, the case that established the court's power of judicial review.

News reports last week emphasized how much Sotomayor did not tell. The equal reality is that senators did not ask. The 12 Democrats of the Senate Judiciary Committee appeared to have little interest in hard questions for President Obama's first nominee. The seven Republicans, who seemed to have no chance of derailing the 17-year veteran of the U.S. bench who would be the first Hispanic justice, focused more on Sotomayor's off-bench speeches than the substance of cases.

A pretty sorry state of affairs, no?  I was disappointed that there were no Establishment Clause questions, and that was before I knew it was the first time in more than twenty-five years of confirmation hearings that no Senator asked a question in this area.  There's so much that is difficult to change about the confirmation process, but it should not be so difficult to ensure that this does not happen again.

Oral Argument Set in Salazar v. Buono

The Supreme Court of the United States will hear oral argument in Salazar v. Buono on October 7.  The Obama administration's brief is here.  The brief of the respondent, Frank Buono,  is due the last week of July, I believe. 

We did not learn much, if anything, about Sonia Sotomayor's views on the Establishment Clause during the confirmation hearings.   Assuming Sotomayor is confirmed (a pretty safe assumption), we could learn a fair amount about those views in this case.

That's all, folks

Judge Sotomayor has now left the building.  Having kept one ear on the webcast today and skimmed SCOTUSblog's excellent liveblog of Tuesday and Wednesday's sessions, the only discussion I saw of religious liberty was an exchange between Senator Cardin and the judge on the Ford v. McGinnis case.   That exchange appears below the fold, and the video of it is here (it begins around 36:00).  (If you'd like more background on the case, I briefly discuss it here.)

I appreciate the fact that Cardin asked about religious liberty; indeed, it appears that he alone took the time to engage Sotomayor on this topic.  I wish, however, that Cardin had used his question to ask not only about religious freedom generally but also specifically about the Establishment Clause, particularly given Sotomayor's relatively thin record in that area. 

It's a real strain to find new insight into Sotomayor's views in her answer.  She called the right to religious freedom a "very important and central part of our democratic society," and she recognized the Establishment Clause, along with the Free Exercise and Free Speech Clauses, as playing a key role in protecting religious liberty.   Sotomayor said the Constitution restricts "the state from establishing a religion."  (Sotomayor wasn't trying to quote the First Amendment, but it's worth noting that the First Amendment says, "Congress shall make no law respecting an establishment of religion," not establishment of "a religion."  Thus, the Court has held that the government is barred not only from promoting one faith over another but also from promoting religion generally over nonreligion (or vice versa).  Cardin or one of the other Senators could have used that comment as a good hook for a follow-up question exploring Establishment Clause principles, but it was not to be.)  

There's still time for written questions from the Senators.  But the teachable moment for Americans is basically over, and the opportunity to engage Sotomayor in conversation is certainly over. 

Given the rest of her testimony, it's not likely we would have learned a great deal about her views in this area even if better (and more) questions had been asked.  But we might have gotten a few more signals and the issue would have been given some of the attention it deserves.

Update

I'll be tied up all day today with other things, but I plan to catch up on some Sotomayor blogging tomorrow.

Sotomayor's Opening Statement

It's here. An excerpt:

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.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged.  That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected.   That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system.  My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

It's a crisp and concise statement that provides an effective rebuttal to the criticisms we've heard thus far today.   Of course, there's much more to come, but she's made a good start.

Senators' Reflections on Religion, Religious Liberty, and the Confirmation Process (Updated)

In addition to Chairman Leahy, some other Senators have made brief references to religion and/or religious liberty in their opening statements during the confirmation hearings of Judge Sonia Sotomayor.  Relevant excerpts from the remarks of Senators Sessions, Kohl, Schumer, and Cardin appear below the fold.

Leahy on the "Burden of Overcoming Prejudice," Racial and Religious

From Judiciary Chairman Patrick Leahy's (D-VT) opening statement in the Sotomayor confirmation hearing:

Those who break barriers often face the added burden of overcoming prejudice. That has been true on the Supreme Court. Thurgood Marshall graduated first in his law school class, was the lead counsel for the NAACP Legal Defense Fund, sat on the United States Court of Appeals for the Second Circuit, and served as the Nation's top lawyer, the Solicitor General of the United States. He won a remarkable 29 out of 32 cases before the Supreme Court. Despite his qualifications and achievements, at his confirmation hearing, he was asked questions designed to embarrass him, questions such as "Are you prejudiced against the white people of the South?"

The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism and charges that he was a "radical". The commentary at the time included questions about "the Jewish mind" and how "its operations are complicated by altruism." Likewise, the first Catholic nominee had to overcome the argument that "as a Catholic he would be dominated by the pope."

I trust that all Members of this Committee here today will reject the efforts of partisans and outside pressure groups that have sought to create a caricature of Judge Sotomayor while belittling her record, her achievements and her intelligence. . . .

Senator Ben Cardin struck some similar themes.

Sotomayor and Religious Liberty

As Supreme Court confirmation hearings for Judge Sonia Sotomayor get underway this morning, let me highlight a few resources on religious liberty issues.  Here's my analysis of Sotomayor's church-state record.  (By the way, a couple of months ago I wrote a short piece on Justice Souter's legacy on religious liberty that set the stage for this analysis.)   Other resources include:  the Baptist Joint Committee's analysis of these issues, which was written by Holly Hollman; case summaries compiled by Americans United for Separation of Church and State; and a discussion by Eugene Volokh of a free speech case brought by a religious organization. 

At the end of my analysis, I suggest a few questions Senators could ask Judge Sotomayor on church-state issues. 

Back for Limited Engagements

Good morning.  First and foremost, let me apologize for my long period of silence.  I have been struggling with a decision about whether I could continue blogging in any form or fashion, given a crush of competing responsibilities.  I have decided to try to get back in the game for limited engagements, and the confirmation hearings for U.S. Supreme Court nominee Judge Sonia Sotomayor is one of them.  

Quite apart from the confirmation hearings, it's a busy week, so I won't promise extensive blogging.  But I do hope to offer a few notes and comments on this important process.

Thanks for your patience.   I look forward to the conversation with you.