This is a rush transcript from "The Journal Editorial Report," July 4, 2009. This copy may not be in its final form and may be updated.
PAUL GIGOT, FOX HOST: This week on The Journal Editorial Report, the Supreme Court overturns a judge who could soon be one of their own in a much-watched workplace discrimination case. We'll take a look back at the big cases of the just completed term, and a look ahead to Sonia Sotomayor's Senate confirmation hearing.
Plus, dangerous precedent. A judge clears the way for U.S. officials to stand trial for the advice they give presidents.
The Journal Editorial Report starts right now.
Welcome to The Journal Editorial Report. I'm Paul Gigot.
The Supreme Court closed its term with a major decision this week, rejection the notion that one kind of racial bias can be remedied by another. On the last day opinions before the court is potentially joined by Judge Sonia Sotomayor the justices overturned one of her most closely scrutinized cases on workplace discrimination. In a 5-4 decision, the court ruled that the city of New Haven violated civil rights' law when it threw out firefighter promotional exams because more whites than minorities passed the test.
Jan Crawford Greenburg is the author of "Supreme Conflict, the Inside Story of the Struggle for Control of the united states Supreme Court." She joins me now from Washington.
Great to have you back on the program.
JAN CRAWFORD GREENBURG, AUTHOR: Always great to be with you, Paul.
GIGOT: All right, let's take the Ricci case first. How significant is the ruling for the law on racial preferences in contracts and hiring?
GREENBURG: Well, I think it's really will have a sweeping impact in the work force, making it really harder, I think, for employees to show some of the standard discriminatory impact forms of discrimination, and especially in occupations where the employer use tests or rules, the court is going to make it much harder for employers to consider race when they're doing hiring and promotions. And obviously, this was one of the most closely watched cases of the term, a big reverse discrimination case and those are always controversial, Paul. It was 5-4. The justices were quite — quite divided on this, a very bitter dissent by Justice Ginsburg. Alito wrote a concurring opinion. He and Ginsburg really went at it in the two opinions.
But this case took on heightened significance because of the role of Judge Sonia Sotomayor. She ruled against those white firefighters down in the lower courts. So, you know, this was being closely watched for what the court was going to rule and whether or not they were going to reject her reasoning.
But I think that before we get into that, Paul, we've got to keep in mind, it was really just the idea that the court decided to take up this case in the first place, that's really significant. Remember, Judge Sotomayor's appeals court panel, dissent of this controversial case, thousands of pages of briefings and arguments, in one paragraph, that's all they did, that was all their legal reasoning. So the idea that the court decided it was important enough to take up, regardless how they ruled, I think is pretty significant in terms of how this will play out in her confirmation hearing.
GIGOT: Well, how much will this play out? You have the issue of the overturning of the judgment itself, but then you have the way that the lower court has treat this had and that what some people thought was a cavalier fashion. Do you think this will be a central.
GREENBURG: Absolutely, very.
GIGOT: Will there be a central issue?
GREENBURG: Absolutely, you're going to hear a lot about this case. The hearings are scheduled to start on July 10th so we've really just got to the next week to try to process it. It's coming right on the eve of those hearings. This will be front and center.
And like you said, I think there will be two issues, number one, the way that she kind of summarily missed these white firefighters' claims. Conservatives say she was trying to bury the claims and that she really supports racial preferences. The significance of this case, that one paragraph, a summary decision that she and two other judges issued.
And then you've got the second question, what the law actually says and here the court obviously ruled 5-4 with the conservatives, rejecting her view. But even the liberal suggested that they thought that lower court should have done more. So you're going to see a lot of the conservatives are going to have to work with. The Democrats and the liberals are going to say, yeah, but look, the liberal justices would have agreed with the end result, that the white firefighters didn't have a case. But again, this is going to be a big one.
GIGOT: All right, let me broaden this discussion out. Let me read you something from Tom Goldstein, a prominent Supreme Court watcher. He wrote this about the court. The court is moving steadily in the direction of rolling back Warren Court precedence that conservative's view of significant overreaching of the judicial role. Do you think that's where the court is going?
GREENBURG: Paul, as you know, the justices and certainly the justices who have believed that the court should take a more restrained role and let the legislator have a more significant role in the social issues have been trying for decades to undo some of those Warren Court decisions and they failed. That was largely what the book was about.
GIGOT: All right.
GREENBURG: Was why these conservative justices would get up on that court and then kind of turn to the left. And this looks like a court led by John Roberts with Justice Sam Alito taking Sandra Day 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, Paul, was a big DNA case. An inmate up in Alaska convicted of rape argued that he should have a constitutional right to his genetic material after he was convict to test his DNA. He confessed to the crime, but he want to challenge it. The justices, led by John Roberts, a beautiful example of conservative jurisprudence, said this is not an issue for the court, the legislators are handling this, most of the states would allow this kind of access, we're not going to be policy makers. And that's the direction I think that the court is headed in.
GIGOT: But in a couple of other instances, one, the exclusionary rule, Herring case, where they didn't turn it back. They pared it back. That's the rules that say you can throw out the evidence if the police err in the way they gather the evidence. And in the voting rights case, they had a chance to perhaps overthrow that. A lot of people on the left thought they might. In fact, they didn't with an 8-1 decision, essentially preserved it with some language questioning its relevance, it's modern relevance. It sounds like a very cautious incremental court.
GREENBURG: It is and that's John Robert's approach. That's his style. And I think you and I talked about this a couple of terms ago when he was wanting to take a more cautious approach. If he could decide the case on a more narrow basis, he was going to do that.
The voting rights case you just mentioned, a great example of that. The court ruled narrowly, 8-1, saying that the small towns and municipalities, mainly in the south, could try to get out from under some of the restrictions of the Voting Rights Act, 40-year-old act. Things have changed obviously. But they didn't declare it unconstitutional, and they got eight votes for that, that proposition. Roberts took a more narrow approach in that case and as a result, as the court spoke with the more unanimous voice. And the main person who wasn't really deciding that case was Justice Kennedy. You know, if you're 5-4, Anthony Kennedy is going to be deciding all these cases, but if you do it on a more narrow way, you're not going to have that swing vote casting every decisive vote and you will have an outcome like the voting rights case where John Roberts got eight justices to degree, and with the result that I think conservatives are pretty happy about.
GIGOT: All right, Jan Crawford Greenburg, thank you for your insight.
GREENBURG: Good to be here, Paul.
GIGOT: When we come back, a look ahead to Sonia Sotomayor's Senate confirmation hearings later this month. Can the Supreme Court nominee count on the support of the senate's newest member? We're guessing she can.
GIGOT: We're back with a review of the Supreme Court's terms and a look at Sonia Sotomayor's confirmation hearings, scheduled to begin in just over a week.
Joining the panel, Wall Street Journal columnist and deputy editor, Dan Henninger; editorial board member, Jason Riley; and opinionjournal.com editor, James Taranto.
Jason, OK, the Ricci 5-4, for the New Haven firefighters. Good decision?
JASON RILEY, EDITORIAL BOARD MEMBER: Yes, I think it's a good decision. Reject the notion that new forms of discrimination can remedy old discrimination. Discrimination is wrong.
What's interesting is even the four 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 that was interesting. In that sense, it was 9-zip in rejecting Sotomayor's reasoning.
But, yes, to the extent that the government is moving away or these cases are getting us away from a government, racial spoils type endorsement system is a good thing.
GIGOT: But it was still a very narrow moving away. It didn't stay flat out, look, racial preferences are against the Constitution. It didn't go as far as Anthony Scalia says, ultimately, maybe the Supreme Court has to go it. He wrote in his concurrence there's tension between this discrimination — the history of racial discrimination cases and the idea that racial remedies can solve that.
DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: And for all the criticism that Alito heaped on the 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 and it even allows Congress, if it wants to, under pressure, to step in and to legalize what New Haven did.
JAMES TARANTO, OPINONOURNALCOM EDITOR: It's narrower even than that. It did not say that you cannot deny somebody a promotion on the basis of race because you're afraid of a disparity impact lawsuit, which is what New Haven had been arguing? It says that if you do so, there has to be a strong basis in evidence that you're in danger of liability. So it was an extremely narrow ruling.
GIGOT: It still is Justice Kennedy's Supreme Court. He's still that 5th vote. Unless he's willing to go further, John Roberts and the rest of the conservatives cannot take the court any further than that.
TARANTO: And that would be the assumption, yes.
RILEY: There were 23, 5-4 decisions this term. Kennedy was in the majority in all but five of them. So, clearly he's the most consequential vote on the court.
GIGOT: Well, this is — are we talking about — and I quoted, when I was talk to go Jan Crawford Greenburg, the idea that somehow the court is going to redo all of these and overturn these Warren Court decisions. But this, to me, is an incremental court. Is there some kind of radical conservative majority in the wings here? If it can only get a few more votes?
TARANTO: Getting a few more votes would require a new president. We are not going to have for at least three and a half years. No, and I don't think there's anything like a radical majority. It's very incremental.
GIGOT: Or even a reasonable majority.
TARANTO: Chief Justice Roberts seems to follow the Doctrine of Constitution Avoidance, which means, if you don't have to decide a constitutional issue, you don't. That's what happened in the Ricci case. That's what happened in the Voting Rights Act. And it's a good principle, a principle of restraint.
The problem is when there's another majority, and Justice Kennedy and Scalia was the 80 at the end of Barack Obama's...
GIGOT: Second term.
TARANTO: If he gets one. And a new majority is unlikely to be as restrained.
HENNINGER: Of course, we're only guessing about what's on Roberts' mind, but I have a view of 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 decide his cases on larger constitutional ground, such as 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 trying to vent off the Supreme Court from that fight.
GIGOT: There's an argument had they overturned at that portion of the Voting Rights Act, which deals with jurisdictions, principally in the south, which require clearance from the Justice Department for their voting regulations, they could have invited overturning by Congress.
RILEY: Could have invited overturning by Congress, but there's a question whether or not you would have got the vote.
GIGOT: Even the...
RILEY: One theory is that he was restrained in the voting rights case. Roberts, we're talking about here, because he would have lost Kennedy if he would have gone after the constitutionality of it. In Roberts' defense, during his confirmation hearings, he said this is what he was going to try to do, build consensus on the court and build majorities and he's judged in the way that he promised.
GIGOT: One interesting cases they decide today kick over into the next term is the campaign finance, involving "Hillary" the movie, which is an anti-Hillary Clinton movie that some conservatives put out, but ran afoul of campaign finance laws, even though it's pretty clearly a free speech, free political speech movie.
TARANTO: Yeah, and they seem to have ticked it down with the idea of possibly expanding free speech by restrictions like campaign finance regulations and possibly overturning a previous line of cases dealing with corporate financing of campaign materials.
I've seen this movie, by the way, and I give it a thumbs down. It's very shrill and unpleasant to watch.
GIGOT: All right, James.
Well, we're guessing Sonia Sotomayor can count on a yes vote from the Senate's newest member. The Minnesota Supreme Court declared Democrat Al Franken the winner of last year's disputed race, giving the Democrats the 60th vote. Although Franken trailed incumbent Senator Norm Coleman by 725 votes on election night, Franken's legal team soon descended, swarming the recount and aggressively demanding that votes that had been disqualified be added to his count while others be denied from Mr. Coleman. They also ginned up an additional 3,050 absentee ballots for Franken. By the time it was over, Franken won by 312 votes. It all goes to show that modern day elections don't end when voters cast their ballots. They only end after the lawyers count them.
Still ahead, a federal judge sets a dangerous precedent, clearing the way for a convicted terrorist to sue a former Bush official for advice he gave to the president. We will have the details when we come back.
GIGOT: The debate over what should happen to the Bush administration officials who drafted the so-called torture memos took a new turn when a federal judge in San Francisco ruled at that former Justice Department lawyer, John Yoo, can be help personally responsible for the detention and alleged torture of convicted terrorist Jose Padilla. The ruling clears the way for Yoo to stand trial in a civil lawsuit for his role in producing a series of legal memos, authorizing harsh interrogation techniques, later used on Padilla who is now serving 17 years in prison.
We're back with Dan Henninger. Also joining the panel, editorial features editor, Rob Pollock, and foreign affairs columnist, Bret Stephens.
Dan, what are the implications for the advice that other government officials will give the president or even the current presidents if this suit is successful?
HENNINGER: The implications are obvious. Current case law holds that public officials like John Yoo are held — they have immunity when they are advising presidents.
GIGOT: Unless they commit clear criminal acts.
HENNINGER: Unless they commit clear criminal acts. If this law suit succeeds, clearly other future administration officials are going to be reluctant to give the president their 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 get into a situation like this, potentially they will be not simply sued, but destroyed using the legal system to damage...
GIGOT: Yes, but maybe not — I just want to — maybe not just conservative Republican administrations, Bret, because what happens if we have another terrorist attack and somebody in the Obama administration is sued for having given advice that don't interrogate enough.
BRET STEPHENS, FOREIGN AFFAIRS COLUMNIST: Or what happens when a future President Clinton decides he has to go to the help of some enclave like Kosovo and violate the War Powers Resolution for the first time, as President Clinton did.
GIGOT: You could get some conservative to sue them.
STEPHENS: And those conservative guys are out there.
ROB POLLOCK, EDITORIAL FEATURES EDITOR: I think it's important to clear up one huge misconception here, a lot of people believe that John Yoo devised the interrogation techniques. That's not what happened. The CIA came to him, gave him a list of things and said, we'd like to do these things. He advised against doing a number of the things. And he said specifically that Abu Zubaydah's wound had been endured during capture.
GIGOT: One of those was capture and interrogated.
POLLOCK: Yes. He said specifically that his wound has to be allowed to heal. They couldn't do anything to interfere with that. I mean, this is not how it's been portrayed.
GIGOT: Not only that, but he also — John Yoo was not some rogue. He was acting at the request of superiors, at the request of the CIA. And ultimately, the president of the United States declared Padilla to be an enemy combatant.
STEPHENS: Which is why, if the left here were honest, the suit would be brought against President Bush, but that's not the real purpose. That's not the real purpose here. The purpose is to intimidate these mid level career officials who are 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 basic point here is that the far left — the far left is 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.
GIGOT: There's another aspect this, Rob, which is that the Office of Professional Responsibility at the Justice Department has been investigating for five years the writers of these interrogation rules. And they're about to come out with a report that kind of kicked the can down the road to get past the Bush administration. And now that decision of what to say and what to recommend rests with Attorney General Holder. And the elite recently said that they're going to maybe perhaps remedies disbarment or referral to disbarment or other sanctions against — not just you, but against Jay Bybee and Steven Bradbury.
POLLOCK: I think it's a joke to imagine the mediocre lawyers that populate the back-water office of the Justice Department.
GIGOT: The same people.
POLLOCK: And who are active in Bar Associations passing judgment on an elite lawyer like John Yoo. That's just a joke.
GIGOT: They remedies disbarment. We could have a hearing against Jay Bybee, a federal judge. People have talked about that.
HENNINGER: Right. And in addition, there's faculty at the law school where John Yoo teaches, at Berkeley, that want his tenure removed and driven from the faculty. You have strategies here to essentially drive John Yoo out of the legal system and out of public life. And there will others will come after him...
GIGOT: One little element. The genesis of this came out of a legal shop affiliated with Yale Law School. The dean of the law school, Harold Koh, where John Yoo also went to school, has been nominated by President Obama to be the legal advisor for the State Department who would be responsible for defending U.S. officials from these kinds of suits and other legal matters.
Should confirm — quickly, should he be confirmed?
STEPHENS: Absolutely not. There are Americans who are facing civil suits abroad, like Spanish Judge Baltasar Garzon, and I don't see how the same guy, who is essentially encouraging the lawsuits, would defend American citizens against it.
GIGOT: All right. Thanks.
We have to take one more break. When we come back "Hits and Misses" of the week.
GIGOT: Time for "Hits and Misses" of the week.
Dan, first to you.
HENNINGER: The United States pulled its troops out of Iraq cities this week turning it over to the Iraqi police and Army. The war is not over, but I think we should express recognition of what has been accomplished. First of all, this is a testament to David Petraeus surge strategy to take and clean out the cities. It 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 testament to the American men and women fighting in Iraq with uncommon valor, no matter whose strategy they've been executing. And on this 4th of July, I think to say that they are America's finest is an understatement. We do salute them.
GIGOT: Here, here.
RILEY: A hit for Rudy Giuliani, the former mayor of New York City, who said this week he is considering running for governor. And I hope he does it.
GIGOT: A comeback!
RILEY: I very much hope he decides to jump into the race. The state legislature, we know, for a long time, has been dysfunctional. Now it's not functioning at all. Albany is in need of adult supervision. And I think the man who cleaned up New York City might do the same for the state.
TARANTO: President Obama this week touted California's highly regulated energy market as a model for the nation. He said that Californians use 40 percent less energy than the national average.
Well, Paul, I grew up in California. You know why they 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 the east coast, too. I've got a proposal for president Obama. When the rest of the country will have California-style regulation when he can deliver the California weather.
GIGOT: All right.
I'm going to give a big miss to Wal-Mart this week. The nation's major employer, which this week endorsed a government-mandated for providing health care for employees. This is the same Wal-Mart that has been beaten up by labor unions for years for not providing enough health care benefits. Why has Wal-Mart turned now? Well, political protection, but also maybe to impose costs on smaller competitors, which can less easily afford those health care costs. Just proving that when it comes to preserving liberty, big business is not a reliable ally.
If you have a "Hit or Miss," send it to us at email@example.com.
That's it for this week's edition of The Journal Editorial Report. Thanks to my panel and all of you for watching.
I'm Paul Gigot. Happy July Fourth. We hope to see you here next week.
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