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    Judge Sotomayor on Whether Judges Make Policy


    Obama's Empathy Standard

    President Barack Obama outlined his criteria for appointing a replacement for retiring-Justice David Souter today. In Obama’s world, justice should not blind, instead: I will seek …. someone who understands justice and isn’t about some abstract legal theory or footnote in a case book, it is also about how our … More

    Obama’s Outcome Based Jurisprudence

    Following the news that Justice Souter will be retiring this summer after the Supreme Court’s present term ends, President Obama dropped into the White House briefing room this afternoon and commented on how what he will be looking for in a replacement. Unfortunately, his remarks were in keeping with his … More

    Not a Zero-Sum Game: Replacing Justice Souter Risks a More Activist Court

    Though certainly no originalist, Justice David Souter is not a complete judicial activist, either. On a number of cases and issues, he has rejected the activist “empathy” standard promoted by President Obama to instead cast votes and write opinions that are in accord with the demands of the Constitution and … More

    A Supreme Court Vacancy: What’s at Stake, What’s Required

    The news that Justice David Souter will be resigning from the Supreme Court has left some conservatives momentarily confused. It should not. As much as Justice Souter disappointed those faithful to the Constitution, and those disappointments are legion, he was reasonable or even sound in several key areas (more will … More

    And Then What, Dean Koh?

    Today’s confirmation hearing for Harold Koh, President Obama’s nominee as Legal Adviser for the State Department, is an important hurdle, but it’s not the last one. As a transnationalist, Koh is not normally respectful of the Senate’s “advice and consent” role in making treaties. The full Senate can therefore be … More

    Questions for Koh

    Today at 2:15 the Senate Committee on Foreign Relations will hold a confirmation hearing for State Department Legal Adviser nominee Harold Koh. While Koh has an impeccable academic resume, his opinions opinions regarding the role that rulings of foreign courts should play within the U.S. legal system raise serious national … More

    Questions for Secretary Napolitano: Workplace Enforcement

    DHS Secretary Janet Napolitano is tentatively scheduled to testify before the United States Senate Judiciary Committee about DHS immigration enforcement policies on May 6, 2009. Given Secretary Napolitano’s novel interpretations of federal law, the Heritage Foundation will be posting a series of questions (and suggested answers) for the Secretary. Question … More

    What Happens When the First Amendment Meets Criminalization of Speech?

    As we pointed out on Monday, State Department Legal Advisor nominee Harold Koh’s praise for the “Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials” is misguided in several respects. One of these is that the Convention requires all signatories to criminalize … More

    Harold Koh on International Norms and “Skeptical” Nation-States

    The Administration’s nominee for Legal Adviser to the State Department, Harold Koh, has explained – in his 1998 Frankel Lecture, later published in the Houston Law Review – that one of the Adviser’s roles is to “help maintain . . . habitual compliance with internalized international norms.” He has also … More