There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate. - Barack Obama, 2005

Via DemfromCt, E.J. Dionne:

When George W. Bush was president, Senate Republicans now proposing to raise an ideological ruckus said Democrats were wrong to use judicial philosophy as a benchmark for confirming a nominee. If a president's picks were formally qualified and intelligent -- and both Chief Justice John Roberts and Associate Justice Samuel Alito were -- that should be enough, the Republicans said.

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Richard Cohen writes:

It was Ricci's misfortune to take -- and pass -- the New Haven, Conn., fire department's exam for promotion to lieutenant and captain, and then have the job denied him because he is white. Others will argue -- fatuously and, when they are before St. Peter, with heads bowed in shame -- that race had nothing to do with what happened to Ricci, but the fact remains that had he been black, his uniform would already sport a lieutenant's bar.

(Emphasis supplied.) Richard Cohen calls himself a "conditional liberal." I have no idea what he means but I do know he is a fool. In fact, no one argues that Ricci's condition in life has nothing to do with the fact that he is a white man. Quite the opposite. The argument is that we are a nation that has been advantaged for white men throughout its history. Cohen the fool believes that the ascendancy of Barack Obama to the Presidency washes this all away. It is of course Richard Cohen who does not understand the history and realitiies of this country. How could he? Could anyone imagine Richard Cohen holding the exalted station he currently holds were he not a white man? Gawd help us if it were true. He is the very picture of the problem. More . .

I have often written of my profound admiration for Justice David Souter - I call him the finest Justice since Brennan. And I want to defend that argument with a detailed post. But alas, other projects, paying and otherwise, have gotten in the way. But I noticed a comment from txpublicdefender about Dahlia Lithwick's article on Souter, and it seems clear to me that she feels much as I do about Justice Souter. Here is a wonderful passage from Lithwick:

The AP now has this list of potential replacement candidates for Justice Souter.

President Obama's vetting team has been at this for a while. I doubt he'll feel pressured to nominate someone acceptable to conservatives, particularly with Arlen Specter and (hopefully)Al Franken joining the Dems in the Senate before a vote is scheduled. Whoever he picks is probably a lock.

If he is looking for a "consensus nominee", as I wrote several times in 2005 when Bush was doing the picking, 5th Circuit Judge Ed Prado would be an excellent choice. Initially appointed to the federal bench by Reagan, and to the 5th Circuit by Bush, he's also been a long-time opponent of mandatory minimum sentences, as I wrote here in 2003. Prior to becoming a judge, he was both a district attorney, U.S. Attorney and Public Defender. The "Draft Prado" website is no longer accessible, but who knows, maybe it will be back.

CNN and NPR are reporting Supreme Court Justice David Souter is retiring and has informed the White House. NBC's Pete Williams said a few hours ago, maybe, maybe not.

Update: I just got a press release from MSNBC saying Pete Williams broke the story on Rachel Maddow's show tonight.

Washington Post report here, also saying Souter has informed the White House. It gives this list of potential replacement nominees: [More...]

The Supreme Court today decided Arizona v. Gant, the case many defense lawyers have anxiously been awaiting. And, it's good news.

The Supreme Court today sharply limited the power of police to search a suspect's car after making an arrest, acknowledging that the decision changes a rule that law enforcement has relied on for nearly 30 years.

In a decision written by Justice John Paul Stevens, an unusual five-member majority said police may search a vehicle without a warrant only when the suspect could reach for a weapon or try to destroy evidence or when it is "reasonable to believe" there is evidence in the car supporting the crime at hand.

The Court didn't completely overrule Belton v. New York, but said it has been misapplied by courts. [More...]

The Supreme Court accepted cert today in Pottawattamie County v. McGhee, 08-1065, an Iowa case in which two men wrongfully convicted of murder sued the prosecutors. Curtis W. McGhee Jr., and Terry Harrington served 25 years of a life sentence for killing a retired police officer before being freed when it turned out prosecutors had withheld evidence about another suspect and presented false testimony from witnesses.

[Prosecutors]Richter and Hrvol argued that they were immune from lawsuits because they were acting within the scope of their job. Federal courts, however, rejected their motions to dismiss the lawsuits, saying the immunity did not extend to them.

The lower courts found immunity on the withholding evidence claim but said the prosecutors can be sued for procuring false testimony during the investigation and using it against the defendants at trial. Scotus Blog has the pleadings in the case.

If my kid, when he was a kid, was strip searched in the 8th grade at school because they thought he had ibuprophen, I would have been up in arms.

Tuesday, the Supreme Court hears arguments in the case of an Arizona student who was strip searched at school.

Savana Redding was an honors student at a middle school in Safford, Ariz., with a clean discipline record. A friend of Savana’s, who was found in possession of pain relievers, told school authorities that Savana had given her 400-milligram ibuprofen pills, a prescription -level dose of the pain reliever in over-the-counter Advil and Motrin, used to treat headaches and menstrual cramps.

I don't care if it was percodan or dilaudid. You don't strip search kids. [More...]

A basic tenet of criminal procedure is that after arrest, you have the right to be brought before a judge without undue delay. (Think, Mallory v. U.S., 1957 and McNabb v. U.S., 1943.)

The Supreme Court upheld that principle today and threw out a confession, even though it was voluntary, because the cops waited too long to take the federal bank robbery suspect to court.

Today's case is Corley v. U.S., written by Justice Souter. The opinion is here (pdf). [More...]

Via ScotusBlog:

In the final ruling of the day, the Court, over two Justices’ partial dissents, ruled that a 2005 federal law providing free defense lawyers for individuals facing a possible death sentence allows such a lawyer to seek clemency for the client from state officials. Justice John Paul Stevens wrote for the majority in Harbison v. Bell (07-8521). Justice Scalia filed a partial dissent, joined by Justice Samuel A. Alito, Jr.

The opinion is here (pdf.)[More...]

Border Agents Ignacio Ramos and Jose Compean lost their bid to have the Supreme Court review their convictions for shooting an unarmed drug smuggler and lying about it.

The agents, already out of prison due to their ten-plus year sentences being commuted to two years by former President Bush, no doubt will be disappointed. I'm not. What's shocking about this case is that some people believe suspected drug dealers from Mexico inevitably deserve to be shot and that it's okay for law enforcement agents to shoot an unarmed suspect who is running away.

President Barack Obama has made his first judicial nomination:

Announcing his first federal appeals court pick, President Obama today reached for a moderate who already has the bipartisan support of both of his home state's senators. If confirmed, federal Chief District Judge David Hamilton of Indiana will get a seat on the US 7th Circuit Court of Appeals in Chicago.

But, is he really a moderate? The radical right objects to him on grounds he has issued pro-choice rulings and was a board member of the Indiana ACLU prior to becoming a federal judge.

The National Review complains: [More...]