Post Politics: Supreme Court, DADT, Sotomayor, More

Washington Post Supreme Court reporter Robert Barnes was online June 10 at 11:30 a.m. to discuss the court's decisions this week, the Sotomayor confirmation and the latest news about the White House and Congress.

____________________

Robert Barnes: Good morning folks. Bit of a bait and switch, as the White House reporters are tied up. I'll do what I can to answer your questions about Sotomayor hearings, the court's decision on judges and campaign contributions and the surprisingly easy win by Creigh Deeds in the Virginia Democratic primary. And anything else you might have on your mind, politics-wise.

_______________________

Philly: Thanks for the Chat. Why did Justice Bader even issue the temporary stay in the Chrysler case if she did not have at least 4 justices agree to hear the case? By law does not the Indiana Pension funds have a case? Thanks for your thoughts.

Robert Barnes: Hard to know what kind of a case they had, although lower courts had ruled against them. The petitions to the Supreme Court never really got to the point of arguing the law. As for why Justice Ginsburg issued the temporary stay, that seemed to make sense to me. The filings--called applications--and responses were being filed all weekend, and the government didn't send its response until Monday morning, with the 4 pm deadline looming. So extending the stay just gave the justices a bit more time to decide what they wanted to do.

_______________________

Des Peres, Mo.: Morning, Robert. Here's a procedural/diplomatic question. When the Court grants a stay such as the one on Chrysler, is it kosher for someone (like a staffer) on the Court to phone someone at the White House (or maybe vice versa) and feel out how serious the case is for the good of the country? I assume the court reads the election results, but is there any kind of behind-the-scenes exchange of info? Any way for the government to let the Court know that time is truly of the essence? Thanks

Robert Barnes: No, that would not be kosher. Certainly the justices read the newspapers and watch the news, so they know the importance of a case. The government needs to make its time is of the essence arguments through its filings. The clerk's office is in touch with the parties to make sure things are filed in time, and let's give a special shout-out to the public information office, which kepts the press apprised throughout this about what was happening.

_______________________

Leesburg, Va.: Hi Robert,

I'm confused as to what exactly happened with the DADT case...did the court refuse to even hear it? If so, why?

Robert Barnes: You're asking about the court's decision not to review a lower court's ruling that threw out a challenge to the military's "don't ask, don't tell" policy on gay service members. Here's the thing: the court accepts just about 1 percent of the cases presented to it. To those of us who cover the court, it was pretty clear it would not accept this one. The Obama administration didn't want it to, even some of the challengers didn't want it to and it seems likely that the president is going to do something on this on his own. Further, there was no disagreement yet among the lower courts. Such "circuit splits" are most often what the court looks for in deciding whether to accept a case. Now, there could be such a split before long; the 9th Circuit has decided to let such a challenge go forward. That would seem a more likely case for the court to take, should the policy not be changed in the meantime.

_______________________

Pittsburgh: It's being reported here that Supreme Court Justice Scalia, in his dissent on the Caperton v. Massey Coal case -- re Massey's $3+ million in campaign donations to a West Virginia justice hearing the lawsuit against Massey, who then decline to recuse himself -- wrote in part:

"The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution. Alas, the quest cannot succeed - which is why some wrongs and imperfections have been called nonjusticiable."

How is this NOT judicial activism, which Scalia and other conservatives profess to deplore? Do you anticipate any Democratic Senators will remind their GOP colleagues of this during the upcoming Sotomayor court nomination hearings, should any Republican Senator try to insinuate a possible risk of her becoming an activist judge?

washingtonpost.com: Campaign Contributions Can Lead to Judicial Bias, Supreme Court Rules

Robert Barnes: I'm not sure I get your specific point about this case, but I do think "judicial activism" is about the most over-used phrase in the legal world, and I often think it means "I don't like the way the case was decided." The truth is that justices on both ends of the spectrum strike down laws passed by democratically elected representatives based on their reading of the constitution, which i guess is one definition of judicial activism. We will have a very intersting test case of that later this month, when the court decides what to do about Congress's extension of the Voting Rights Act.

_______________________

Washington, D.C.: I liked the poll in Shailagh's article today -- 86% want the government to make health care more accessible and affordable, but more than half are concerned government is too involved in health care. It seems like there's a bit of a disconnect there, no?

washingtonpost.com: Health Care Is Tricky Terrain

Robert Barnes: I don't know that there is a tougher problem to tackle. It seems no one is happy with the current system, but everyone believes the cure could be worse.

_______________________

Philadelphia: When the Republicans were in charge and Bush was nominating Roberts and Alito they threatened to use the "nuclear option." Did they think they would remain in the majority forever? Now they are using a ridiculous formula based on Sotomayor's lengthy history of decisions to delay her nomination hearings. Do they think they can stop Obama from getting his nominee on the court? Have they no sense of decency?

Robert Barnes: Now, Philadelphia, you can certainly fault Republicans for how they are approaching the Sotomayor nomination, but I'm not sure you can make a case they are doing anything that Democrats did with previous nominations. Certainly none of them thought they would deny Roberts a seat, no? I'm afraid the posturing on Supreme Court nominations knows no bounds. I also have no idea what the right amount of time is to review a candidate's record, and certainly Sotomayor has a long one. That said, I do think most of the material is available right now.

_______________________

Are the Democrats getting smarter?: Robert, I admit to being biased (I'm a Dem and I voted for Obama and Deeds), but it looks to me like the Democrats as a group are doing a lot of smart things to win elections. Limiting the infighting, downplaying the role money plays in the campaigns (McAuliffe had lots more money than Deeds), not kowtowing to the establishment in the party and picking candidates in the primary process who are well positioned to win in November. It seems to be working well. Isn't it likely to continue elsewhere (cough-Arlen Specter-cough)?

Robert Barnes: You may be right, and I think Deeds certainly ran a smart campaign and capitalized on his endorsement from The Post (which I had absolutely nothing to do with, just to be clear). But I guess I'm reluctant to draw too much significance--nationally--from a primary with such a ridiculously low turnout. Now, the general election? I think that could hold some real lessons for both parties.

_______________________

Wilmington, N.C.: Mr. Barnes do you have any details re how the stay of the sale of Chrysler to Fiat turned around so quickly ? Thank you for your taking my question.

washingtonpost.com: Fiat Acquires Chrysler Assets

Robert Barnes: As we discussed earlier, I don't think "turned around" is the right way to describe what the court did. It simply gave itself a little more time to consider whether to get involved, and then decided not to.

_______________________

Hamilton, Va.: Re the WVA Supreme Court case.

I can't believe the 4 dissenters. The facts in this case were outrageous.

I have always been mystified that states elect judge. Especially Supreme Court.

Invitation to biased "justice."

Robert Barnes: Well, you might remember Justice John Paul Stevens during oral arguments compared it to the memorable line about pornography: I know it when I see it. The case was tougher to decide, I think, than the facts might indicate, because of the hard to answer questions it raises about how much is too much. But it seems a clear signal to judges in such circumstances that it is best to recuse.

_______________________

Re Pittsburgh: in reply to Pittsburgh's charge that Scalia's statement amounted to "judicial activism," I agree with you that Pittsburgh's logic is hard to grasp. Perhaps, though, you could inform Pittsburgh that the Constitution was not meant to, and does not, address every conceivable issue that might come before the Supreme Court. Thus, what Scalia was opining against was the majority's continued attempts to force every issue into a consititutional question when in actuality the issue raises no such issue. Viewed as such, his position is the opposite of judicial activism.

Robert Barnes: I think I'll let you do that.

_______________________

"and it seems likely that the president is going to do something on this on his own": Can you elaborate on why you believe that?

Robert Barnes: I meant that the president has said he opposes the policy and wants to change it. But you might have a point that I should not have used the word "likely." As the LA Times recently put it: "President Obama's campaign vow to end the ban on gays in the military -- and the "Don't Ask, Don't Tell" policy that forces thousands of military personnel to stay in the closet -- appears to be driven now by a strategy of "Don't Rush."

_______________________

Claverack, N.Y.: A majority of the court in Massey has determined campaign contributions can in certain instances taint a judge's impartiality and require recusal. Yet SC precedent has treated campaign donations as protected speech. If laws were passed to reign in spending specifically in judicial election campaigns, would this court find that unconstitutional?

Robert Barnes: That's a very good question. It has been noted that the four dissenters are the justice who have the least concerns about constitutional problems over large campaign contributions. The exception in this case is Justice Kennedy. Rick Hasen, an expert on campaign finance laws, had this to say about the decision:

One of the most interesting subtexts of the decision in this case is the role of campaign finance. Justice Kennedy, of course, has been one of the Justices most opposed to the constitutionality of much campaign finance regulation on First Amendment grounds. Here, however, Justice Kennedy acknowledges the important role that campaign spending plays in potentially influencing outcomes: if such outcomes can influence judges---creating the possibility of subconscious bias on the part of judges who benefit from independent expenditure campaigns---isn't the same true of candidates for other office, and doesn't that present a reason why even independent expenditures can be regulated? I would expect some of Justice Kennedy's words to be thrown back at him in a future case involving campaign finance laws outside the judicial elections context.

_______________________

Kingston, Ontario: To this outside observer, it appears that the GOP are firing off all their ammunition before the enemy has come into range. It's as though they think Obama is up for re-election this fall. The exaggerated response to Sotomayor, who seems a moderate and popular candidate, will merely reinforce the damage the GOP did to itself last year over the immigration issue. Meanwhile the over-the-top rhetoric of Limbaugh, Palin, Gingrich, etc. whips up the base but must surely alienate the cool-headed majority. Obama's political advisers must be feeling deeply satisfied at how things are going.

Robert Barnes: Glad you're interested in us down here, Kingston. Remember, though, that midterm elections will be a key test of how the Democrats are doing. Republicans and conservatives are looking for opportunities to show how, in their view, Obama campaigned as a moderate but is governing as a liberal. Which is why it is some are attempting to portray Sotomayor as outside the mainstream. But you'll notice that most of the fire is not coming from elected Republicans but from conservative activists on the outside. I think GOP senators are still undecided about how far to push this one.

_______________________

Washington, DC: To correct Philadelphia, the nuclear option wasn't about Roberts or Scalia. It was about the Dems filibustering qualified appeals court nominees..such as Miguel Estrada. Who, we know from memos leaked from Durbin's office, was held up because left-wing interests groups considered him a threat for the SC because he was Latino.

I also think Philadelphia should listen to speeches Schumer and Kennedy made about those two before her talks about "decency"

Robert Barnes: Interesting that Estrada held up because of Democratic concerns he could become first Hispanic justice, and Sotomayor's nomination to the 2nd Circuit held up by Republicans for just the same reason. Seems to reinforce the perceived political potency of such an appointment.

_______________________

Washington, DC: I find it amusing after first decrying Sotomayor as unqualified now the GOP is stating that it will be impossible to confirm her within a year because of her long judicial record. There was a pro-rata formula given with Roberts there were about 300 cases for Roberts and Sotomayor 3,500 cases. Therefore the GOP will need 610 days to review her record and will not be ready until 2011 to do a confirmation hearing.

Robert Barnes: I so admire people who are good at math. If I wasn't positive I'd get it wrong, I'd try the same formula using Alito.

_______________________

Washington, D.C.: Why did Obama request that the SCOTUS refrain from hearing the DADT case?

Robert Barnes: It is difficult, though not impossible, for the government to change its position from the lower court, where it defended the policy, now that the case is before the Supreme Court. And there are some gay rights group who think there is more to be lost than to be won by having the current court review the policy.

_______________________

Robert Barnes: That's it for me today, folks. Thanks so much for sending your questions and, more importantly, for reading The Washington Post.

_______________________

Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.