By Matthew S. Schwartz
Legal Affairs Correspondent – Talk Radio News Service

The confirmation of Supreme Court nominee Sonia Sotomayor may be a sure thing, but Republicans on the Senate Judiciary Committee have requested a one-week delay in the committee vote.

Chairman Sen. Patrick Leahy (D-Vt.) said he was “disappointed” by the delay, but “they have a right to put it over.” Republicans informed him over the weekend of their intent to delay the vote to next Tuesday. If the committee approves her, the vote will go to the full Senate floor.

Leahy stressed the importance of confirming Sotomayor quickly, as the Supreme Court reconvenes early next term to hear a case on the constitutionality of the McCain-Feingold campaign finance bill. “I hope that once she is passed out of this committee, there will be no delay on the floor, because she will have a very, very few weeks after she is confirmed to move to Washington” and prepare for the case, he said. “Delay would not help either her or the Supreme Court.”

Sen. Jeff Sessions (R-Al.) said that even with the delay, “Confirmation, if it occurs, will occur sooner than even John Roberts.” Chief Justice Roberts began his Judiciary Committee hearings on Sept. 12, 2005, and was confirmed by the full Senate on Sept. 29.

Just 10 members of the 19-member Judiciary Committee showed up Tuesday, the minimum needed for committee business to take place.

Leahy told reporters he doesn’t know how long the floor debate will last, but it should be quick because senators should all know how they plan to vote by the time the official debate starts.

With a filibuster-proof 60 Democratic seats in the Senate, Judge Sonia Sotomayor has nothing to worry about. Unless the senators discover something completely unexpected and horrifying about her past, she will be the next Supreme Court justice. And yet she still faces heated opposition and rhetoric from the Republican minority.

How did Supreme Court confirmation battles become so contentious? And why do some nominees face loads of opposition while others sail through? TRNS Legal Affairs Correspondent Matthew S. Schwartz interviews various Supreme Court experts to try to figure out how things got quite so heated.

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Supreme Court nominations have become increasingly contentious in recent years. It seems that no matter how qualified a nominee is, he or she is going to face a passionate confirmation battle. Supreme Court expert Tom Goldstein joins TRNS Legal Affairs Correspondent Matthew S. Schwartz to discuss what he calls the “poisonous” atmosphere of Court nominations. Goldstein, a partner with Akin Gump, is a Supreme Court litigator, lecturer at Harvard and Stanford law schools, and founder of SCOTUSblog, a popular Web site focused on Supreme Court issues.

(13:08)

 

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By Matthew S. Schwartz — Talk Radio News Service

The Sixth Amendment to the U.S. Constitution gives criminal defendants the right to confront witnesses against them, and that includes the technicians who analyze the evidence found at the scene, the Supreme Court ruled today in a 5-4 decision that crossed the court’s ideological lines.

Until today, the Confrontation Clause only guaranteed defendants the right to face witnesses who were explicitly testifying against them; scientists and technicians who merely ran tests and prepared sworn “certificates of analysis” did not need to come to court and face the defendant in person. With today’s ruling, they do.

The word “witnesses” in the Sixth Amendment means anyone who presents testimony against the defendant, Justice Antonin Scalia wrote in his bench statement discussing his majority opinion, which was joined by Justices John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg. Certificates of Analysis are testimonial statements against the defendant, and so the analysts must be called for cross-examination, the Court ruled.

“Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well,” Scalia wrote. “Serious deficiencies have been found in the forensic evidence used in criminal trials.”

The four dissenting justices were, put bluntly, aghast at the decision today, arguing that the majority had, in one fell swoop, disregarded the accepted Confrontation Clause rules that have been in place for at least 90 years, and extend across 35 states and six federal Courts of Appeals.

“It is remarkable that the Court so confidently disregards a century of jurisprudence,” wrote Justice Anthony Kennedy for the dissent, which was joined by Chief Justice John Roberts Jr., Justice Stephen Breyer and Justice Samuel Alito. “We learn now that we have misinterpreted the Confrontation Clause — hardly an arcane or seldom-used provision of the Constitution — for the first 218 years of its existence.”

Particularly problematic, the dissenters argue, is the fact that the Court required the “analyst” to testify, but made no attempt to explain which analyst they were referring to. In the context of a standard drug test that leads to a Certificate of Analysis, there could be four different technicians that each count as the “analyst.”

The ruling “has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence,” Kennedy wrote, calling the Court’s new reading of the Confrontation Clause “formalistic and pointless.”

The case was Melendez-Diaz v. Massachusetts.

By Matthew S. Schwartz — Talk Radio News Service

A 13-year-old girl’s Constitutional rights were violated when school officials searched her bra and underpants for prohibited painkillers, the Supreme Court ruled today.

The Court did not go as far as banning school strip searches, but did state that officials must have a justified belief, based on suspected facts, that a strip search will reveal the hidden items.

“Nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear,” wrote Justice David Souter in the 8–1 decision. Officials need to fear danger to students, and have a specific reason to look in a student’s underwear, “before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts.”

Because there was no reason to suspect the drugs presented a danger or were hidden in her underwear, the search violated the Constitution. The Fourth Amendment protects citizens from “unreasonable searches.”

The highly anticipated case arose out of events that occurred at the Arizona middle school in October of 2003. Then assistant-principal of the school, Kerry Wilson, called Savana Redding into his office, where he showed her four white prescription-strength ibuprofen pills, and one over-the-counter naproxen pill, all used for pain but banned under school rules. Wilson told her he had received a report that she was giving the pills to students, but Savana denied it and agreed to let Wilson search her backpack.

After finding nothing, Wilson sent Savana to the school nurse, who searched her clothes for pills. Finding none, they then asked her to remove her clothes, pull her bra out and to the side and shake it, and pull out the elastic on her underpants. No pills were found.

Savan’s mother filed suit against the the school district and officials for conducting a strip search in violation of Savana’s Fourth Amendment rights.

Normally, for a search to be constitutional, a police officer must have “probable cause” to conduct the search. Probable cause exists where circumstances would “warrant a man of reasonable caution in the belief that an offense has been, or is, being committed,” in the words of an oft-cited 1925 Supreme Court decision.

But the Court has also recognized that the Fourth Amendment must be applied differently in educational contexts, where schools are responsible for ensuring their students’ safety. So in 1985, the Court required a less stringent standard — “reasonable suspicion” — and held that a student search is permissible if it is “reasonably related to the objectives of the search, and not excessively intrusive in light of the age and sex of the student.”

The facts in this case did not justify such an intrusive search, the Court held.

“The suspicion of Wilson’s was enough to justify a search of Savana’s backpack and outer clothing,” Souter wrote, adding that most reasonable suspicions would support searches of a student’s backpack and outer clothes.

A strip search, however, is “categorically distinct” from a backpack and clothes search, Souter wrote. “Savana’s subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. … [A]dolescent vulnerability intensifies the patent intrusiveness of the exposure.”

Lawyers for the school had argued that the search was no more intrusive than what happens in school locker rooms. But the justices wouldn’t buy it.

“Changing for gym is getting ready for play; exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be,” Souter wrote.

The Court also held that the school officials who conducted the search are protected from liability, because it was unclear at the time whether the search violated the Fourth Amendment.

The lone dissenter, Justice Clarence Thomas, believed the search did not violate Savana’s Constitutional rights. “The majority imposes a vague and amorphous standard on school administrators,” he wrote, calling the decision a “deep intrusion into the administration of public schools.”

The case is Safford Unified School District #1 v. Redding.

South Carolina Governor Mark Sanford, who had gone missing for several days over the past week, admitted today that he has been having an affair with a woman he met in Argentina eight years ago.

Sanford had told his staff that he was taking a few days off, and strongly implied that he would be hiking on the Appalachian Trail. His wife told reporters that Sanford often disappears like this, and she was not concerned. In reality, she learned about five months ago that he was having an affair, and she knew that he was actually in Argentina this past weekend.

“What I did was wrong. Period,” he told reporters in a hastily-called press conference, in which he also resigned as chairman of the Republican Governors Association. “This was selfish.”

Sanford was remarkably candid with reporters today, explaining how the two met, and how he grew close to her.

When he met the woman, she was separated, and the two had a deep conversation about why she should get back with her husband. “Not only was it God’s law, but ultimately her two boys would be better for it,” he said.

At the end of the conversation, they exchanged e-mail addresses. Over the years, they became very close, sharing personal details of their lives and asking for advice.

“When you live in the zone of politics, you can’t ever let your guard down,” Sanford explained. “It could be a front page story.”

Because the woman lived thousands of miles away, Sanford felt a “zone of protectiveness.” The two developed a “remarkable friendship,” that “sparked into something more than that” about a year ago. He had seen her three times since then.

This illicit relationship was the first and only time he’s been unfaithful to his wife, he told reporters.

His wife learned of the affair five months ago, Sanford said. At that point, he tried to figure out what to do next.

“I spent the last five days of my life crying in Argentina, so I could repeat it when I came back here,” Sanford said. “From a heart level, it was something real.”

“God has a better track record than man does” at making lakes, streams and wetlands, says Rob Cadmus, Water Quality Organizer for the Southeast Alaska Conservation Council. The SEACC suffered a setback today as the Supreme Court allowed Coeur Alaska to proceed with its mining operations that will destroy a nearby lake. (0:10)

 

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Jay Cadmus of the Southeast Alaska Conservation Council says his organization worked extensively with Coeur Alaska to find a waste disposal system that would have provided jobs and while not harming the environment, but Coeur ultimately backed a system that will destroy a lake. The Supreme Court today allowed Coeur to proceed with its mining operations.

“Those jobs at the Kensington mine could be provided without having to use a lake as a tailings storage facility,” Cadmus said. “In my mind it’s not a question of jobs; it’s a question of how one cares for the environment. And we feel that if someone’s going to use a public resource like our clean water, they need to be held to a very high standard.” (0:59)

 

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The Supreme Court today blessed a gold mining operation in Alaska that is virtually guaranteed to kill all the wildlife in a nearby lake — although the mining company promises it will later “reclaim” the lake, filling it with organic material to make it an even better wildlife habitat.

The Environmental Protection Agency and the U.S. Army Corps of Engineers had already approved the project, which was being disputed by a coalition of Alaskan environmental groups. In upholding the agencies’ approval, the Court upheld its familiar rule that federal agencies are entitled to deference.

The case stemmed out of a proposal by Couer Alaska to reopen the Kensington Gold Mine, near Juneau, which had been closed since 1928. Couer hoped to make the mine profitable by using a technique called “froth flotation” to pull gold-bearing minerals to the top of a tank of roiling water. Couer would then dispose of the crushed rock and water slurry in the Lower Slate Lake, three miles away in the Tongass National Forest. The slurry would almost completely fill the 23-acre lake, currently 51 feet deep at its maximum, transforming it into a 60-acre lake about one foot deep. In the process, all the fish and fauna in the lake would die.

The alternative, Coeur argued, was to place the slurry on nearby wetlands, creating a pile that would rise twice as high and cover three times the area of the Pentagon. This would permanently destroy dozens of acres of wetlands.

Couer needed federal approval before it could proceed with its plan. Two separate provisions of the Clean Water Act (CWA) seemed to give authority over the discharge of slurry to both the U.S. Army Corps of Engineers, which has jurisdiction over the creation of wetlands, and the Environmental Protection Agency, which is responsible for monitoring levels of waste in the water.

The Army Corps approved the gold mining plan, finding it was the “least environmentally damaging” way to dispose of the slurry, and that the damage would only be temporary, since in the future the reclaimed lake will be an even better wildlife habitat. The EPA declined to veto the Corps permit.

The permit was challenged by the Southeast Alaska Conservation Council (SEACC), a coalition of 12 Alaskan environmental groups. According to SEACC, the Army Corps did not have the authority to approve the mining operation because a section of the CWA forbids even tiny solid waste discharges — and that includes the slurry discharge, 30% of which is solid waste. The company and the federal government argued that another section of the CWA grants the Army Corps blanket authority to permit the discharge of the slurry.

In light of the ambiguities in the CWA, the Court looked to the agencies’ interpretation — and found that the agencies had resolved the problem “in a reasonable and coherent way.” An internal EPA memo explained that the prohibition on solid waste discharge applies not to the initial discharge of slurry into the lake, but to any further discharge into downstream waters.

The Army Corps had the sole authority to grant the permit, the Court ruled, because the slurry would fall under the regulations for “fill material,” which is solely under the jurisdiction of the Army Corps, not the EPA.

Three justices dissented, arguing that the use of waters as “settling ponds” for harmful mining waste runs “antithetical to the text, structure and purpose of the Clean Water Act.”

The case was Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (07-984/07-990).

An employee bringing an age-discrimination lawsuit against his employer must prove that age was the determining factor in the demotion or firing, the Supreme Court held today in a 6-3 ruling.

Plaintiff Jack Gross, 54, sued his employer, FBL Financial Group, Inc., after FBL demoted him and gave his old position to a younger employee. Gross brought his action under the Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse actions against an employee “because of such individual’s age.”

Over FBL’s objections, the judge instructed the jury that if Gross proved his age played any part in the decision to demote him, the burden would shift to FBL to prove it would have demoted him regardless of his age. The jury returned a verdict for Gross, awarding him over $46,000 in lost compensation.

Today the Supreme Court vacated that verdict, finding that the judge had improperly instructed the jury.

In an ADEA disparate-treatment claim, the plaintiff has the burden of proving, by a preponderance of the evidence, that age was the “but-for” cause — that is, the determining factor — of the employer’s decision.

Lower courts were inappropriately applying Title VII precedent to this ADEA action, the Court found. Title VII prohibits discrimination on the basis of race, color, religion, sex or national origin. But unlike Title VII, the burden of proof in ADEA age-discrimination claims “does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision,” Justice Clarence Thomas wrote for the majority.

The case was Gross v. FBL Financial Services, Inc.