Talk Elections

Possible SCOTUS pick failed bar four years ago
@ 11:19 am by Eric Zimmermann

If Stanford Law professor Kathleen Sullivan is nominated to the Supreme Court, she'll likely have to answer at least one embarrassing question during her confirmation hearing: How did she fail the California bar exam?

Sullivan, who's rumored to be on Obama's SCOTUS short list, failed the test just four years ago while serving as a professor at Stanford Law School.

At the time, Sullivan, a former dean of Stanford Law, was already licensed to practice in Massachusetts and New York. She took the test after joining an appellate firm in California. After failing the July 2005 test, she passed in February 2006 after taking her preparation more seriously.

"I am eating, drinking and sleeping the bar," Sullivan told the LA Times before her second test.

Sullivan is considered a brilliant legal scholar and authored of one of the nation's most widely used case law textbooks. But failing the test did have consequences: in January 2006, she was removed from a $500 million lawsuit for not having passed the bar.

In Sullivan's defense, the California exam is known as one of the most difficult in the nation. More than half of those who sit for it fail.

Arguello, 53, was born to a family of railroad workers in the tiny town of Thatcher, Colorado. She was the first in her family to attend college, graduating from University of Colorado at Boulder and Harvard Law, where she was an editor of the Harvard Civil Rights-Civil Liberties Law Review. From 1980 to 1999, she practiced law and taught at the University of Kansas School of Law, subsequently serving as Colorado's Chief Deputy Attorney General under then Attorney General Salazar. After several abortive court nominations, she was confirmed as a Colorado District Court judge last December. At the time, The Rocky Mountain News wrote that "she believes her background will make her more understanding and empathetic to the 'common man' and attorneys who appear in her courtroom."

Federal Appeals Court Judge Diane Wood, one of the leading contenders to replace David Souter, is in Washington today. The highly regarded Wood is here, ostensibly, to attend a legal conference at Georgetown. But the timing is curious, and here’s why.

According to a student, she didn’t teach her first-year civil procedure class at the University of Chicago Law School yesterday afternoon and provided no advance notice or explanation. That’s apparently because she was flying to DC—to attend the long-scheduled judicial conference, even though she is not on the program as a panelist or participant.

In United States v. Falso, 544 F.3d 110 (2008), Judge Sotomayor, joined by Judge Livingston, rejected a defendant’s plea to overturn his conviction based on a Fourth Amendment violation.  The defendant was arrested for possession of child pornography after FBI agents searched his home with a warrant.  The warrant application stated that an agent had purchased a  subscription to a website advertising available child porn and that in light of a subsequent forensic examination of the site “it appeared” that the defendant “either gained access or attempted to gain access” to the website as well.  In addition, the affidavit revealed that the defendant had previously been arrested in 1987 on charges of sexually abusing a seven-year-old girl and pled guilty to a misdemeanor charge of “acting in a manner injuriouss to a child less than sixteen” for which he received probation.  Writing for the majority, Judge Sotomayor held that this failed to establish probable cause for the search warrant. 


However, she held that the constitutional violation did not warrant exclusion of the evidence because the officers acted in good faith reliance on the wrongly-issued warrant.  She further rejected the defendant’s reliance on an exception to the exception: she concluded that there was insufficient evidence to show that the issuing magistrate was knowingly or recklessly mislead.  And she rejected the claim that the warrant application was so facially lacking in indicia of probable cause as to make reliance upon it unreasonable.  Judge Livingston concurred in part and in the judgment, but would have ruled that the police had probable cause.

President Barack Obama told C-SPAN on Friday that he’s “going to have an announcement soon” on his pick for the Supreme Court, and said he is looking for “not just ivory tower learning.”

Asked if he would like to serve on the Supreme Court after leaving the White House, Obama quipped: “You know, I am not sure that I could get through Senate confirmation.”

And I remember that the Republicans bullying the Democrats was actually the norm for the last two decades (Iraq War Resolution anyone? ). Not much whining by Phil I suppose during that period.   

o Justice Souter's retirement could move the Court to the left and provide a critical fifth vote for:

    o Further eroding the rights of the unborn and property owners;

    o Imposing a federal constitutional right to same-sex marriage;

    o Stripping "under God" out of the Pledge of Allegiance and completely secularizing the public square;

    o Abolishing the death penalty;

    o Judicial micromanagement of the government's war powers.

Thomas was also obviously unqualified. He should have been rejected.

And yes, the Republicans don't enjoy the benefit of the doubt that the Democrats do regarding minorities. That's the price they pay for 40 years of  being the Party of White Resentment.

2)If you really were disgusted by the bullying and patriotism-mongering by the Republicans in 2002, then I applaud you.

But the fact is that identity politics is alive and well, for better or worse. Of course the Democrats will play the Latino card in order to corner the Republicans and paint them as Anti-Hispanic.
It shouldn't be like that, but then again in a perfect world we shouldn't have a racist creep like Sessions judging her or any other judicial nominee for that matter.

2)Thomas WAS unqualified. The American Bar Association said so.

And pardon me if I find amusing the situation in which the Republicans are, but their predicament is entirely self-inflicted. How can I not be amused when I see Huckabee rushing so much to blast Obama's choice, that he got her name wrong in his statement (''Maria Sotomayor'').

And I really don't understand what do you want to say about Thomas. The guy is a living example of tokenism, not surpased until last fall when the world learned of Sarah Palin. 

And the Republican's predicament is self-inflicted because they let the Tancredo wing of the party define their image regarding imigration.

Every time a new justice comes to the Supreme Court, “it’s a different court,” Justice Byron R. White liked to say — and he was in a position to know, having witnessed the arrival of 13 new justices during his own 31-year tenure.

He meant that in a group of nine people bound together by daily ritual and by the need to round up a sufficient number of like-minded colleagues to get anything done, the substitution of one personality for another matters in real life more than it might seem to matter on paper.

It’s an obvious point, but one that is often overlooked in discussions of Supreme Court nominations when, as now, the departing justice’s successor is one who figures to occupy the same side of the ideological divide. President Obama’s nominee to succeed Justice David Souter, Judge Sonia Sotomayor, may not vote much differently from Justice Souter, who established a moderately liberal record during his 19 years on the court.

Even before President Obama made his selection, it was commonly said that this particular nomination would not be a “game changer” on today’s sharply polarized court, where two blocs of four justices seem to spend much of their energy competing for the affections of the one in the middle, Anthony M. Kennedy. (In two 5-to-4 decisions issued on Tuesday, Justice Kennedy voted once with the conservative bloc and once with the more liberal bloc; a third decision was unanimous.)

But even when it seems most static, the Supreme Court is a dynamic institution whose component parts are always, although not always visibly, in motion. John G. Roberts Jr. didn’t figure to be a game-changer either when President George W. Bush nominated him in 2005 to be chief justice. After all, Chief Justice William H. Rehnquist, who had just died, was his former boss and longtime mentor, and no matter how conservative he might prove to be, it was hard to imagine him or anyone else finding much running room to Rehnquist’s right.

And yet there is a different tone now at the court, and not only because Justice Samuel A. Alito Jr., President Bush’s subsequent nominee, is more conservative than the justice he replaced, Sandra Day O’Connor. John Roberts is a justice in a hurry; he pushes hard, like the young Associate Justice Rehnquist for whom he clerked, and in contrast to Chief Justice Rehnquist, who in his later years was capable of voting in surprising ways — to reaffirm the Miranda decision and reject a constitutional challenge to the Family and Medical Leave Act, for example.

It wasn’t that Chief Justice Rehnquist changed his mind on issues that mattered to him — there is no evidence of that. Rather, he seemed to have developed a sense for when it was best for the court, or perhaps even for the country, not to carry every favored proposition over a cliff to its logical conclusion.

That is a sense that Chief Justice Roberts did not appear to gain during his first years on the court; his 2007 opinion striking down voluntary school integration plans in Louisville, Ky., and Seattle was so hard-edged that Justice Kennedy refused to sign it, providing a fifth vote for the result but not for the chief justice’s reasoning.

Whether Chief Justice Roberts has developed a Rehnquist-style sense of when to hold back will be evident next month, when the court is expected to decide whether a central provision of the Voting Rights Act, renewed almost unanimously by Congress three years ago, is constitutional. Based on the deep skepticism he expressed when the case was argued last month, the answer is no.

Beyond Sonia Sotomayor’s stirring life story and impressive résumé, what we really want to know is how she will fit into this mix of ideology, personality, principle and politics. Will she make a difference? According to common sense as well as Justice White’s maxim, the answer is “yes, inevitably.” Will it be a difference that is discernible in the outcomes of cases? That may not be clear immediately.

After Justice Thurgood Marshall retired in 1991, Justice O’Connor published a tribute describing him as the embodiment of “moral truth” and recounting the experience of listening to his stories during the decade that they served together, stories that “would, by and by, perhaps change the way I see the world.”

That was a striking statement from a justice who was on the opposite side from Thurgood Marshall in nearly every civil rights case and whose jurisprudence appeared unmarked by his influence. But it turned out to be Justice O’Connor who wrote the majority opinion in 2003 that upheld affirmative action in admission to the University of Michigan Law School. The way she saw the world in the interval had clearly changed, whatever the cause.

Although she is a pioneer in her own way, it takes nothing from Judge Sotomayor to observe that she is not Thurgood Marshall — just as Anthony Kennedy, for that matter, is not Sandra O’Connor.

Indeed, not even the most experienced justice can count on finding an argument that will persuade Justice Kennedy. But there is some evidence that he can be inspired by example and observation. His opinion for the court in Lawrence v. Texas, the 2003 gay-rights case, clearly rested on his conclusion that gays were entitled to the “dignity,” as he put it, that the court’s earlier ruling on gay rights in Bowers v. Hardwick had withheld. That opinion, among others, indicates Justice Kennedy’s willingness to look through the eyes of those whose experiences are different from his own.

In any event, Judge Sotomayor’s nomination comes at a special moment: the first projection of the remarkable 2008 election onto a Supreme Court that has so often in these last few years appeared headed in the opposite direction from the country. Whether her arrival proves to change the way the incumbent justices see the world, it will, at the least, change the way the world sees the Supreme Court.