Journal Editorial Report 7/4

" This week on The Journal Editorial Report the Supreme Court overturns a judge who could soon be one of their own -- much watched workplace discrimination case will take. I'll look back at that big cases -- just completed term and a look ahead. To Sonia Sotomayor is senate confirmation hearing. But dangerous precedent to judge clears the way for US officials to stand trial for the advice they give president. The Journal Editorial Report starts right now."

" Welcome to The Journal Editorial Report I'm -- ago the Supreme Court closed its term with a major decision this week rejecting the notion that one kind of racial bias. Can be remedied by another. On the last day of opinions before the court is potentially joined by judge Sonia Sotomayor the justices overturned one of her most closely scrutinize cases. On workplace discrimination and a 54 decision. The court ruled that the city of New Haven violated civil rights law when it throughout firefighter promotional exams. Because more whites -- minorities had passed the test Jan Crawford. The inside story of -- struggle for control of the United States Supreme Court she joins me now from Washington great to have you back on the program. That's -- hate to be with you -- all right let's take the -- case first how significant is this ruling for though long on from racial preferences and contracts and higher."

" Well I think it think it really will have a sweeping impact in the workforce making that you really harder I think for employees to show some of these. A standard discriminatory impact. Forms of discrimination and and especially in occupations. Where the employers use tests are rules the court is going to make it much harder. For employers to consider race when they're doing hiring and promotions obviously this was one of the most closely watched cases. -- the -- a big reverse discrimination case and those are always controversy Apollo spite -- for the justices. Were played quite quite divided on this have very bitter dissent. By justice Ginsburg got Justice Alito wrote a concurring opinion he and Ginsburg really -- in those two opinions. But this case to kind of she's at such heightened significance because of the role of judge Sonia Sotomayor. She -- against those white firefighters out in the lower courts. So you know this was -- closely watch for what the court was going to rule and whether or not they -- going to reject her reasoning. About I think it before we even get ended -- how we got to keep in mind. That it was really just that idea that the court decided to take up this case in the first place. It's really significant remembered judge Sotomayor is appeals court panel dispensed of this controversy -- case. Thousands of pages of briefing and argument. In one paragraph that's all they did -- their legal reasoning so the idea that the court decided it was important enough to take out regardless of how they ruled. I think is pretty significant and -- of how this will play out. In her confirmation --"

" How significant will will will how much will this play out and you have the issue of -- overturning. The judgment itself but then you have the way that the lower court had treated this and that -- some people thought was a cavalier fashion. Do you think is as -- very. Would this -- a central issue."

" I absolutely -- you're gonna hear a lot about this case of course -- hearings are scheduled start on July 10 so you know we've really just got away. The next week to kind of process it it's coming right. Right on the eve of those hearing so this'll be friends senator and I get Mikey -- I think they're gonna be two issues number one. The -- has so summarily dismiss these white firefighters claims conservatives say she was just trying to bury their claims and that she really does support. Racial preference says because again the significance of this case that one paragraph. A summary decision that she into whether judges issued an and you got -- second question that what a lot actually says. And here the court obviously will fight a war with the conservatives. Rejecting her view but even though liberal justices suggested that they thought that lower -- should have done more so you're going to see a lot that conservatives are going to have to work wet. The Democrats in the liberals are gonna say have a lot I -- a liberal justices would have you know. Agreed with the end result that the white -- did have a case but again this is going to be a big one."

" let me let me broaden this discussion I -- read something to you from Tom Goldstein I think you know he's -- a prominent Supreme Court -- he wrote this about that the court this recent court is moving steadily. In the direction of rolling back Warren court era precedents that conservatives you. As significant over reaching of the judicial role do you think that that's where this court is going."

" you know I mean you know the justices -- the justices who have believe that the court should take a more restrain raw let the legislatures have a more significant role in some of these social issues have been trying for decades -- Undo some of those Warren court decisions and they failed -- that was. A -- what my book was about was why these conservative justices would get up on that court and then kind of turned to the left. And this looks like a quart led by John Roberts with justice Sam -- so taking Saturday O'Connor's place it is going to have a clear view of the law and the role of the court in society and that's why you're seeing. Some of these decisions that we saw this term. Really pulling the court out of some of these disputes the best case for that -- was a big DNA case an inmate up in Alaska who was convicted of rape. Argued that he should have a constitutional right to his genetic material after he was convicted to test his DNA he confessed to describe it any wanted to challenge it. The justices led by John Roberts a beautiful. Example of conservative jurisprudence said this is not an issue for the courts the legislatures are handling this most of the states would allow this kind of acts as we are not going to be policy makers. That's the direction I think the Roberts court is headed and."

" And a couple other instances one these exclusionary rule to hearing case where they didn't overturn -- all the way -- just pared back that's the rule that says you can throw out evidence of the police here in the way they gather that evidence in in the voting rights case. They had a chance to perhaps overthrow that a lot of people on the left thought they might. And in fact they didn't within eight to one decision that that essentially preserved it was some language -- questioning its relevance it's modern relevance. And at that sounds like a very cautious in criminal court."

" It is and that's John Roberts surprised that his style and you know I think you and I talked about this a couple terms ago when he was really wanted to take a more cautious approach. If he can decide the case on a more narrow base -- he was going to do that the voting rights case you dismiss it. Great example of that you know the court ruled very narrowly eight to one. Saying that these small towns and municipalities mainly in the south. The try to get out from under some of that you know restrictions of the voting rights act forty year old -- that things have changed obviously. But they didn't declare -- unconstitutional they got eight votes for that. That proposition -- to go more narrower approach in that case and as a result. The court spoke with a more unanimous voice and there that the main person who wasn't really deciding that case was Justice Kennedy. You know if you're 54. Anthony Kennedy is going to be deciding on these cases but if he didn't do it on a more narrow way. You're not gonna have that swing vote casting every decisive vote in you're gonna have an outcome like the voting rights case where John Roberts got a justices to agree. And that with the result that I think conservatives were pretty happy about."

" All right Jan Crawford -- thanks so much for your insight. That's -- to be here -- When we come back a look ahead -- yes sought to my our senate confirmation hearings later this month and the Supreme Court nominee count on the support in the -- newest member. We're guessing she can't."

" We're back with a review the supreme court's term and a look ahead to Sonia Sotomayor confirmation hearings. Which are scheduled to begin in just over a week joining the panel Wall Street Journal columnist and deputy editor Dan -- anger -- editorial board member Jason Riley and opinion journal dot com editor James Toronto okay Jason. The year -- case five floor for the New Haven firefighters."

" The decision. Yes I do think it was a good decision it rejects the notion that. New forms of discrimination can remedy all discrimination. Discrimination is wrong. What's also interesting is that even before dissenting justices. Rejected the Sotomayor reasoning in the lower court which is that. These tests could be thrown out solely on disparate impact grounds so I thought thousands and that's that's it was not -- in rejecting Sotomayor -- reasoning. But yes to that to the extent that the government is moving away are these cases are getting -- away from a government racial spoils -- endorsement system. Is a good thing but you know it was still."

" Very narrow moving away didn't say flat out look racial preferences are are against the constitution didn't go as far as Antonin Scalia says that ultimately may be the Supreme Court has to go to when he wrote in his concurrence that there's some tension between this discrimination don't -- Their history of racial discrimination cases and this idea that the racial remedies can can can can."

" Consultant for all the all the criticism that Alito heaped on a city of New Haven it does I think allow cities like New Haven the next time to try to be a little more clever about how they do this it doesn't draw a bright line it even allows congress if it wants to under pressure to step in. And and to legalize what."

" New Haven to its its narrower even than that it did not say that you can not. Deny somebody apart from a visit race because you're afraid of disparate impact lawsuit which is wouldn't -- argument. -- if you do so there has to be a strong bases and evidence that you're actually in danger of liabilities so it was an extremely narrow --"

" So it still is Justice Kennedy Supreme Court really mean -- still that that that fifth vote and unless he's willing to go further. You candidate John Roberts and the rest of the conservatives cannot take the court. Any further than that. There -- worried something yes there were 2354. Decisions this term. Kennedy was in the majority and all but five of them so clearly he's the most consequential vote on the court. Well this is is -- are we talking about me that I I quoted in the when I was done talking to Jan Crawford Greenburg has some idea that somehow -- is gonna redo all of these so overturn these Warren court decisions but. In this use this term it's he'd -- it's really an incremental court. Is there are some kind of radical conservatives. Amendment -- majority in the wings here if if you can only get a few more votes."

" Well get a few more votes would require a new president which shot we're not for at least three and a half years. And decide no I don't think there's anything like a radical majority is very incremental -- got a reasonable majority yeah justice chief Justice Roberts seems to follow what's called the doctrine of constitutional avoidance which means if you. Can't if you don't have to decide -- constitutional issue you don't that's what happened in the -- case what happened in the voting rights act case. And tonight it's that it's it's actually good principle it's a principled -- the problem is. I when there's not a majority and justice like Kennedy and justice who was -- OK that's one. I had died -- that a new majority is unlikely to be his restraint."

" Pressure we're only guessing here about what's on roberts' mind but I do have a view -- this and I think that what he's attempting to do is protect the institution of the court by taking this minimalist approach if he were to do. The -- cases on larger constitutional grounds such of the voting rights act it would in fact. Draw tremendous fire from the left now we live in a time. Where everything is highly politicized the executive branch legislative branch I think Roberts at this point is -- defense off the Supreme Court from that --"

" And there's an argument that -- they overturned that portion of the voting rights act which shouldn't deals with. Jurisdictions in the principally in the south require clearance from the justice department for their boating regulations. That they could've invited overturning by congress."

" Good invited overturned by congress but there's no question of whether or not he would've gotten. Even if -- even if I mean with a 11 theory is that he. Was. Restraint and in in the voting rights case Roberts we're talking about here because he -- lost Kennedy. If he would -- and constitutionality of it but. And roberts' defense during his confirmation hearings he says that this is what he was gonna try and do. -- consultants on the court and and and build majorities and and -- judged in in the way that you --"

" It's now one interest in case that they decided to kick over into the next term as a -- is -- come campaign finance case involving Hillary the movie. Which was an anti Hillary Clinton. Movie that some conservatives put -- which ran afoul of campaign finance laws. Even though it's pretty clearly a free speech free political speech. --"

" Yeah and they seem to have kicked it down with the idea possibly by expanding our free speech side. Restrictions on campaign finance regulations. Possibly overturning a previous line of cases dealing with corporate financing of five of stuff campaign -- I've material I've seen this we've by the regular thumbs down side it's very shrill and -- unpleasant one."

" All right James well we're guessing Sonia Sotomayor can comedy yes vote from the Senate's newest member that Minnesota Supreme Court this week declared Democrat Al Franken. The winner of last year's disputed race giving Democrats their sixtieth. Vote although Franken trailed incumbent senator Norm Coleman by 725. Votes on election night. Frank is a legal teams soon descendants forming a recount and aggressively demanding that votes that had been disqualified be added to his count. While others be denied for mr. Coleman. They also ginned up an additional thirteen 150 absentee ballots from Franken leaning counties by the time it was all over. Franken at one by 312. Votes -- all goes to show that modern elections don't end when voters cast their ballots the only and after the lawyers. Count them. Still ahead. A federal judge sets a dangerous precedent clearing away -- Convicted terrorists to sue a former bush official for advice he gave to the president will have the details. When we come back. The debate -- what should happen to the Bush Administration officials who drafted the so called torture memos took a new term when a federal judge in San Francisco ruled that former Justice Department lawyer John you. Can be held personally responsible. For the detention and alleged torture of convicted terrorist Jose Padilla the ruling clears the way for you to stand trial in a civil lawsuit for his role. In producing a series of legal memos authorizing harsh interrogation techniques that were later used on Padilla who is now serving seventeen years -- and -- We're back with Dan -- are also joining the panel editorial features editor rob Pollock and foreign affairs columnist Bret Stephens Dan. What are the implications. For the advice and other government officials will give future presidents or -- even the current president. If this kind of suit goes forward and is successful."

" Rolling -- implications are pretty obvious you know current case law holds that public officials like John you. Are held they have immunity when they are advising president unless they commit clear criminal classic make it clear criminal -- now -- this. Lawsuits succeeds clearly. Other future administration officials are going to be reluctant to give the president. They're most honest opinion I think what's going on here is nothing to do with the law it's about a political effort to intimidate. Future men and women from serving in conservative Republican administrations because if they do and -- into a situation like this. Potentially -- will be not simply. Sued but destroyed using the legal system --"

" Not even on the swimming but maybe not just conservative Republican administrations -- because what happens if we have another terrorist attack and somebody in the Obama administration -- sued for having given advice said. Don't interrogate enough."

" what happens when a future President Clinton decides that yes it go to the to the help of some on claims like Kosovo and violate the a war powers resolution for the first time as as as President Clinton you can get some conservatives have no legal bucket shop to sue them and an identical conservatives and -- guys are out there."

" Yes I think it's important group one huge misconception here looks a lot of people believe that John you. Devised to be used in interrogation techniques that's not what happened -- a came to him. Gave him a list of things that we'd like to do these things he advised against doing a number of the things he said specifically that I was about has wounded you had been incurred during capture zubaydah was one of the terrorist captured and interrogate these -- specifically that his -- had to be allowed to -- they couldn't do anything -- interfere with that -- I mean this is not at all how it's been portrayed but that's not only that."

" He also I mean John -- was not -- some -- was acting at the request of his superiors at the request of the CIA and he was act and ultimately the president the United States declared Padilla to be. A enemy combat."

" All which is why if if if the left here were honest the suit would be brought against President Bush but that's not the -- that's not the real purpose here. The purpose is to intimidate these mid mid level career career officials. Or simply trying to give the best advice to their president under extremely stressful -- and demanding conditions like months after 9/11. Anticipating another attack but I think the the basic point here. Is that the far left of this is of that the far left this trying to say that we are the only ones who can set. The boundaries of acceptable discourse so views like the ones that you have which I find perfectly legitimate and acceptable. Are supposed to be not only mistaken but actually criminal."

" Well there's another aspect to this -- which is at the office of professional responsibility at the Justice Department has been investigating for five years. -- writers of these and interrogation memos and they're about to come out with a report that kind of kick the can. Down the road to get past the bush administration and -- that decision of what to say what to recommend rests with attorney general holder. And that the event that the move a leak recently said that they're going to may be to perhaps recommend. Disbarment or referral to disbarment or other sanctions against not just you but -- by B and Stephen Brad."

" There frankly I think it's a joke to imagine the mediocre lawyers who populate that backwater office of the Justice Department -- and who are active and bar association's passing judgment on and on and lead lawyer like John you that's just a joke."

" they recommend disbarment we could have an impeachment hearing against -- by -- who is a federal. Judge people -- actually talked about that."

" Right and in addition -- faculty and full law school where John Yoo teaches at Berkeley that won his tenure removed and taken driven from the faculty so you have a whole series of strategies here to essentially. Drive John you. Out of the legal system and out of public life and there will be others that come after him always does the --"

" Little element here that -- that the Genesis of this came out of a legal shop affiliated with Yale Law School the dean of the Yale Law School -- where John you also went to school. Has now been nominated by President Obama to be the legal adviser at the State Department who is responsible will be responsible for defending. US officials from these kinds of suits and other. Legal matters. Should confirm. --"

" It's absolutely not their -- there Americans who who now are facing civil suits abroad. -- like Spanish judge -- is our cars on. And I don't see how the same guy -- essentially encouraging these lawsuits. Would defend. American citizens against them. All right thanks -- we have to take one more break when we come back our hits and misses of the week."

" Time now for our hits and misses of the week -- first year."

" Well the United States -- its troops out of Iraq cities this week train or to the Iraqi police and army now the war is not over but I think we ought to express some recognition of what has been accomplished first ball. This has been a testament to General David Petraeus is surge strategy to take and clean out the city's there was also a testament to George W. Bush for. Finally figuring out that the Petraeus strategy is what might work there. And I think most of all it's a it's a testament to the American men and women who have been fighting in Iraq. With uncommon valor no matter -- strategy they've been exec feuding -- on this fourth of July I think to say that they are America's finest is an understatement we do salute."

" Dumped here. Jason. This is ahead for Rudy Giuliani though former mayor of New York City who said this week that he is considering. Running for governor and I hope he does it -- combat. I very much -- he decides to jump into the race. The state legislator bleacher we know for a long time has been dysfunctional but now it's not functioning at all. Albany is in need of some adult supervision I think the man who cleaned up New York City. Might be able to do the same -- today."

" All right James. President Obama this week touted California's highly regulated energy market as of models of the nation he said the Californians use 40% less energy. The national average will pop I grew up in California -- use less energy out there because they don't have to heat their homes during the winter. -- the Summers are a lot nicer there than on the east coast to a so I've got a proposal for President Obama. The rest of the country looks at California style regulation when he can deliver California weather."

" It's all right I'm gonna give a big -- to Wal-Mart this week amid nation's major employer which this week endorsed. A government health care mandate for providing health insurance for employers this is this for employees this is the same Wal-Mart which has been beaten up by labor unions for years for not providing enough. Health care benefits so why Wal-Mart -- how well political protection but also. Maybe two up impose costs on its smaller competitors which -- less easily afford those health care cost is proving that. When it comes to -- preserving liberty. Big business is not a reliable ally all right remember if you have your own bitterness please send and I said GR at foxnews.com. That's it. For this week's edition of The Journal Editorial -- thanks to my panel and to all of you for watching. I'm -- as you go happy July 4 we hope to see you right here."