SCOTUS Blog Celebrates Black History Month With Series on Race and the Supreme Court

The SCOTUS blog, one of my favorite law-related websites, is celebrating Black History Month by publishing a series of articles on Race and the Supreme Court. Although the scheduled line-up looks promising, it, ironically, suffers from a lack of racial diversity. This is especially true, given that the series celebrates Black History Month and the fact that numerous scholars of color are experts on Constitutional Law and race relations. Nonetheless, I look forward to reading the upcoming commentary.

"Racist" Sotomayor Defends White Employee From Dismissal Due to His Circulation of Racist Literature

In its persistent effort to bring facts to the discussion of Sonia Sotomayor, the SCOTUS blog has published a new empirical analysis of all of the race discrimination cases Sotomayor has heard as an appellate court judge. The SCOTUS analysis forcefully debunks the baseless "racist" trope that some conservatives have used to describe her.

Here is a clip from the SCOTUS blog's analysis [Note: In the federal system, 3-judge panels hear all appellate cases, and one judge writes the opinion for the panel.]:

Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.

Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent’s point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.

Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times.

In one case, Sotomayor "dissented from the majority’s holding that the NYPD could fire a white employee for distributing racist materials."

Given these statistics, the SCOTUS blog concludes that: "[I]t seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking." I concur. Alas, I am afraid that conservative opposition to Sotomayor has absolutely nothing to do with "facts." Accordingly, these types of studies may have very little impact, if at all, on the negative rhetoric.

Rosen's Reviewers Suddenly Get Names!

Jeffrey Rosen has published a glowing review of Judge Diane Wood, a person rumored to be on the "short list" of candidates for a position on the Supreme Court. Recently, Rosen wrote an extremely negative review of Judge Sonia Sotomayor, another potential Court nominee, in which he utilized negative comments by anonymous individuals whom he claims voluntarily contacted him to offer their bad reviews. The negative comments, however, came exclusively from clerks of other judges and prosecutors. Rosen's review triggered a wave of heavy criticism on the Internet.

By contrast, Rosen's review of Wood is laced exclusively with positive comments made by colleagues of Wood at the University of Chicago Law School where she was a Professor prior to becoming a federal judge and where she held the position of Associate Dean. Wood remains a "Senior Lecturer" at the law school. Although Rosen does not state the nature of his contact with the reviewers he quotes regarding Wood, the comments seem like the product of normal investigative reporting, rather than petty gossip (as his analysis of Sotomayor sounds). It is unclear why Rosen failed to solicit and publish positive commentary surrounding Sotomayor, including comments from law professors and other individuals with whom she has closely worked.

Of Interest: The SCOTUS blog has published a series of essays that analyzes the 150 opinions Sotomayor has written in civil cases as a federal appeals court judge. The blog explicitly comments on the lack of attention that other reviewers have given her body of judicial work.

Change = Same?

Today, the Department of Justice announced that it would no longer rely upon a individual's "enemy combatant" status in order to justify indefinite detention by the President. Instead it will advance arguments rooted in the international "law of war" and the Authorization for Use of Military Force passed by Congress.

Although discarding the "enemy combatant" label makes for great political soundbite, at present, it does not materially alter the government's treatment of Al Qaeda members and other terrorism suspects, nor has it changed the government's legal position in lawsuits brought by former detainees alleging maltreatment by the government.

The government described its rhetorical shift in a formal statement and in a legal brief submitted in opposition to a lawsuit against Donald Rumsfeld and other officials by former detainees. The plaintiffs allege that they were tortured and deprived of religious freedom. DOJ argues that the individuals have no enforceable rights against the United States and that even if they had such rights, the defendants are immune from liability.

The government will no longer claim broad authority over "enemy combatants," but will instead use a functional test to determine whether it can indefinitely detain suspects and deprive them of rights that they might otherwise possess. A closer look at the criteria, however, shows very little difference between the "new" standard and the old one used by the Bush administration.

The SCOTUS blog has the details:

Here is how [the Bush] Administration defined ["enemy combatant"]: "At a minimum, the President’s power to detain includes the ability to detain as enemy combatant those individuals who were part of, or supporting, forces engaged in hostilities against the United States or its coalition partners and allies. This includes individuals who were part of or directly supporting Taliban, al-Qaida, or associated forces, that are engaged in hostilities against the United States, its coalition partners or allies. This also includes any persons who have committed a belligerent act or supported hostilities in aid of enemy forces."

Here is the definition of detention authority, without the label "enemy combatant," that the Obama Administration outlined Friday: "The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the united States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces."

SCOTUS also sets forth out the "differences" between Bush and Obama on this issue:

First, the new version requires proof of “substantial” support of Taliban or
Al-Qaeda forces, while the former version required proof of “direct” support of such forces.

Second, the new version requires proof of “substantial” support of forces (other than Taliban or Al-Qaeda) engaged in hostilities against the U.S. and its coalition partners, while the former version only required “support.”

And, third, the new version applies to a person who “directly” supported hositilities to aid enemy armed forces, while the former version only required “support” of such hostilities, and did not include the word “armed” as to enemy forces who had been supported.

The Center for Constitutional Rights, which represents plaintiffs in the litigation, does not mince words. CCR argues that DOJ has:

[A]dopted almost the same standard the Bush administration used to detain people
without charge – with one change, the addition of the word “substantially”
before the word “supported.” This is really a case of old wine in new bottles.

This sounds like the "extraordinary rendition"/"rendition" debate.

PS: Bush also advanced arguments based on the law of war and the AUMF. Also, it does not appear that DOJ rejects Bush's argument that Article II confers detention authority upon the President; instead, it seems that it has simply declined to assert this argument.