Judicial Watch • Obama and the Supreme Court

Obama and the Supreme Court

Obama and the Supreme Court

APRIL 16, 2010

April 16, 2010

From the Desk of Judicial Watch President Tom Fitton:

Stevens Retirement Opens Door to another Radical Obama Supreme Court Appointment

Liberal Justice John Paul Stevens is retiring from the Supreme Court, giving President Obama the same number of High Court vacancies to fill in just over a year that President Bush had during his entire eight-year presidency. According to USA Today:

Supreme Court Justice John Paul Stevens, an unassuming Chicagoan in bow ties who became a shrewd strategist and liberal leader of the modern Supreme Court, announced his retirement Friday morning. He has served nearly 35 years and is about to turn 90.

In many ways, Stevens’ departure may be more significant for the Supreme Court than fellow liberal David Souter’s retirement last year. Stevens, more than any other justice on the left, has taken the lead to craft coalitions that include swing-vote conservatives, allowing liberals to prevail in some key cases that limited the death penalty and expanded gay rights even as the court shifted increasingly to the right.

At least this time, we don’t have to guess what type of Justice President Obama will nominate. He has a track record. His first Supreme Court pick was Justice Sonia Sotomayor.

As you may recall, Judicial Watch vigorously opposed the Sotomayor nomination.

During an October 2001 speech at the University of California Berkeley, Sotomayor famously said the following: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Judge Sotomayor has also promoted the idea that “gender and national origins” of judges “may and will make a difference in our judging.”

Now there’s Berkeley Professor Goodwin Liu, Obama’s pick to serve as a United States Circuit Judge in the Ninth Circuit, who suggests the U.S. Constitution should be interpreted using the “evolving norms and traditions of our society.” (I just covered the Liu nomination a couple of weeks ago. Click here for more details.)

With appointees like Justice Sotomayor and Mr. Liu, Obama is simply keeping one of his campaign promises. Remember this statement during the presidential campaign in 2007? “We need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”

That’s how we got Sonia Sotomayor. And now I wager we’re in for more of the same.

Sure enough, Obama’s statement on the retirement of the arch-liberal Justice Stevens restates the empathy standard without actually using the word “empathy”: “I will seek someone in the coming weeks with similar qualities — an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.

So Obama wants a Supreme Court justice who won’t “allow” powerful interests to “drown out” ordinary citizens. This is results-oriented justice and is at odds with the standard of impartial justice and the oath of office that judges are required take:

“I, XXX XXX, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as XXX under the Constitution and laws of the United States. So help me God.”

Your Judicial Watch is prepared to take steps if Obama nominates a person for the Supreme Court who could be expected to rule contrary to the Constition and in violation of the judicial oath of office. Here’s the statement I offered to the press regarding Stevens’ replacement, which carries a note of caution for the President as he contemplates his second Supreme Court nomination:

“President Obama needs to replace Justice Stevens with a person who will apply the Constitution strictly and not substitute their own political beliefs for the rule of law. If President Obama nominates an ‘empathetic’ liberal judicial activist, he will have a fight on his hands. With looming constitutional challenges ranging from Obamacare to new rights for foreign terrorists, the United States Senate should ensure that only a justice who will strictly interpret the U.S. Constitution is approved. Given the stakes, every U.S. Senator should know that the upcoming Supreme Court vote will be as closely watched as their votes on Obamacare. Tea Party activists ought to be paying close attention to this nomination.”

You can expect Judicial Watch to be a very active participant in the debate over the next Supreme Court nomination. (Here’s a Washington Post listing of the possible picks and, frankly, the list is terrible for those of us concerned about constitutional rule of law.) The President promises to move quickly, so stay tuned.

Key Legal Brief Filed in Anti-Sanctuary Lawsuit against City of Houston, Houston PD

You may recall in September 2009, Judicial Watch filed a lawsuit against the City of Houston, the Houston Police Department (HPD) and a former Houston Police Chief on behalf of Houston Police Sergeant Joslyn Johnson related to the department’s illegal alien sanctuary policies. Houston’s policies illegally restrict and prohibit its police officers from communicating with U.S. Immigration and Customs Enforcement (“ICE”) about illegal aliens who are criminally present in the United States. Sergeant Johnson is the widow of former Houston Police officer Rodney J. Johnson, killed in the line of duty by an illegal alien on September 21, 2006.

The City of Houston (predictably) filed a motion to dismiss the lawsuit, which is now in federal court, and on March 31, 2010, Sergeant Johnson responded.

We made a number of counter arguments in the response to Houston’s kitchen sink legal strategy. (You can read them all here.) But I want to focus on one particular issue. We point out that the Constitution protects Sergeant Johnson’s rights as a citizen of the United States to report violations of federal laws to federal officials. The brief references a key Supreme Court case from 1895, In re Quarles and Butler, 158 U.S. 532. The Quarles opinion notes that:

It is the duty and the right not only of every peace officer of the United States, but of every citizen, to assist in prosecuting, and in securing the punishment of, any breach of the peace of the United States. It is the right, as well as the duty, of every citizen, when called upon by the proper officer, to act as part of the posse commitatus in upholding the laws of his country.

The Qualres Supreme Court ruling reinforces the concept stated in In re Kemmler, 136 U.S. 436 that the law protects the “privileges and immunities [held by citizens] arising out of the nature and essential character of the national government, and granted or secured by the Constitution of the United States.”

Judicial Watch also reiterated in its most recent filing the clear right under federal law U.S.C. § 1373 that local police officers must communicate freely with federal immigration officials:

…the statute clearly imposes a direct and binding obligation on state and local governments. Their language could not be clearer. No restrictions or prohibitions on the sharing of information are permitted. There is nothing precatory about them. It is difficult to conceive of how Congress could have expressed itself any clearer when it used the words “may not prohibit or in any way restrict…any government entity or official from sending to or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Congress has unmistakably ordained that state and local governments may not restrict their law enforcement officers’ communication with federal immigration officials regarding a person’s immigration status.

Congress passed these laws to make sure criminal illegal aliens like Juan Leonardo Quintero-Perez aren’t allowed to prowl the streets killing innocent victims like Officer Rodney Johnson.

As you may recall, Officer Johnson was making a routine traffic stop when he was gunned down by Quintero-Perez, a previously deported Mexican national who had reentered and was living in the U.S. illegally. Quintero-Perez had multiple interactions with the HPD before murdering Officer Johnson, including at least one arrest for driving under the influence, citations for failing to stop and give information following an accident, and driving with a suspended license.

If the HPD had notified federal immigration officials, and Quintero-Perez had been deported as he should have been, Officer Johnson might be alive today. This is why we are fighting so hard in court against illegal immigration sanctuary policies in Houston and in numerous cities across the country.

Dump Holder

Wednesday the Senate Judiciary Committee grilled Attorney General Eric Holder. The Democrats tried their best to provide cover. Holder tried his best to obfuscate. But the message from the hearing came through loud and clear: Eric Holder should not remain as one of our nation’s top law enforcement officers. Here’s The Washington Post’s take on the hearing:

Senators challenged Attorney General Eric H. Holder Jr. on Wednesday over the Obama administration’s long-delayed pledge to close the prison at Guantanamo Bay and its plans to try alleged Sept. 11 co-conspirators…

Holder has been assailed for months over his handling of terrorism cases. Four weeks ago, he snapped to House Republicans that Osama bin Laden would never appear in a U.S. courtroom and that authorities “will be reading Miranda rights to a corpse.” That heightened the expectation that Holder would face a grilling from the Senate Judiciary Committee on Wednesday.

But the attorney general held his ground or side-stepped most hostile questions from Republicans…”

Senator Jeff Sessions (R-AL) mentioned Holder’s weak national security record: “There can be no doubt that treating terrorists as regular criminals will reduce our ability to obtain intelligence,” Sessions said in his opening statement. “And six years ago you acknowledged that fact in a Supreme Court brief — a brief you failed to disclose as required during your confirmation process — you candidly admitted that the civilian criminal system possesses inherent limitations.”

This hearing also came after revelations that Holder didn’t share some key amicus briefs with the Senate Judiciary Committee during his initial confirmation hearings last year. One of these briefs filed in the case involving Jose Padilla, exposed by National Review, showed that he opposed the ability of a president to detain U.S. citizens captured on our soil as enemy combatants. The brief suggested that the resulting risks from letting terrorists like Padilla roam free were “acceptable.”

The Obama/Holder “plan” to shut down Gitmo is foundering and Holder was helpless at this week’s hearing. Here’s The Post’s take on that line of questioning: “When Holder came before the Senate Judiciary Committee for questioning Wednesday morning, Democrats and Republicans confronted the attorney general with the same question: What’s the plan? And Holder had no answer.”

Regarding his dangerous decision to hold trials for Khalid Sheikh Mohammed and other 9/11 terrorists in a New York City civilian courtroom, Holder insisted the option was “not off the table.” (When will the waffling stop?) After the hearing, New York Senator Chuck Schumer (a Democrat) said he’s not buying it: “We know the administration is not going to hold the trial in New York. They should just say it already.”

I thought the Obama administration did just that back in January when a White House official said the administration had abandoned its plans for a KSM trial in New York after a wave of protests. And then again in February when The Washington Post reported that Obama had frozen Holder out of the process of deciding where a trial would be held.

But now, the option is still under consideration.

No matter where this trial is ultimately held, in a New York courtroom or a military tribunal (where it belongs), nothing can change the fact that Holder and President Obama have completely bungled one of the most important national security decisions in U.S. history.

As far as Holder is concerned, this does not surprise me in the least. (Again, this is a man that quipped he’d be prepared to read Miranda rights to a corpse!)

This week’s hearing also didn’t get into the failure of the Holder Justice Department to investigate ACORN. Nor did the hearing touch on the Black Panthers controversy, which saw the Holder Justice Department dropping default judgements against radical Black Panthers who were intimidating voters in Philiadelphia on the day of the 2008 presidential election. Holder’s Justice Department is stonewalling both Judicial Watch and the U.S. Commission on Civil Rights on documents related to the Black Panther scandal.

Fox News has compiled a list of Holder controversies. It’s a long and sorry list. Holder should go.

Until next week…



Tom Fitton
President


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