The Science Committee argues that it's subpoena of New York's climate change investigation material is valid

This related to the story below.

The letter contains an exhaustive explanation about why they believe their subpoena is constitutionally valid and does not violate First or Tenth Amendment rights.

- Click here for the letter.

The letter mentions Wilkinson v Unites States, a Supreme Court case which sets out the three prong test that determines whether a congressional subpoena is legal.

- Click here for the case.

For more there's this law review article:

- Congressional Investigations and the SupremeCourt  

Topics for 7/6/10

Yesterday we watched the first part of the Kagan confirmation hearings -- Leahy's opening remarks. Today we will watch Session's remarks and as much of what follows as we can handle.

I also want to read through this article on the Robert Court's coming of age (the NYT editorializes that it was "aggressive"). It contains a graphic that outlines the major cases of this terms and how the justices voted on them.

In Texas news, the Texas Supreme Court clears the way for the Green Party to be on the November ballot.

Busy Period for the Judiciary

End of session decisions are coming out, and the Kagan hearings are underway.

We can start making sense of both by looking through scotusblog. More specific posts will follow.

Can Judges be Objective? Really?

Early opponents to Judge Sotomayor's nomination to the court are honing in on a sentence in a lecture she gave in 2001, where she spends a great deal of time discussing her life as a Latina. It's an interesting lecture, here's a link, and in it she asks whether we can ever transcend the experiences that shaped us and make truly objective decisions. It's an interesting question, worth a discussion in class. She is arguing that justice requires a court system compsed of individuals from various walks of life. Sounds like pluralism to me.

Anyway. Here is the sentence in context (it's in bold). Let me know if you think its as controversial as some are making it out to be:

...In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

The Confirmation Hearings

One of the checks and balances is outlined in Article 2, Section 2 which states that the president shall appoint the officers of the United States with the advice and consent of the Senate. That almost never means advice, only consent, which is usually but not always offered.

Here are few links with background on the process--at least the committee hearings--the current nominations are going through:

For Secretary of State: Hillary Clinton. Hearings in the Senate Foreign Affairs Committee.

For Attorney General: Eric Holder. Hearings in the Senate Judiciary Committee.

For Transportation Secretary: Ray LaHood. Hearings in the Senate Commerce, Science and Transportation Committee.