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  • Legal Memorandum posted September 9, 2010 by Deborah O'Malley A Defense of the Elected Judiciary

    Abstract: The assault against elected judges has entered a new and more dangerous phase: Millions of dollars are being poured into efforts to promote “merit” selection of state judges, a system in which unelected, unaccountable experts and special interests recommend for appointment—and in some cases select—judges as a way to combat politicization. Yet merit selection…

  • Commentary posted August 6, 2010 by Robert Alt, Deborah O'Malley Now Well See What Kagan Really Thinks About Issues

    On Thursday the Senate confirmed Elena Kagan to the U.S. Supreme Court. Given her hostility to certain enumerated constitutional rights and her penchant for using foreign laws to rule on U.S. constitutional law, there is good reason to think she'll be well out of the mainstream as a justice. During her hearing, Kagan refused to state her views of the Second…

  • Commentary posted July 30, 2010 by Robert Alt, Deborah O'Malley Kagan's Red Flags

    Senators will vote soon on whether to confirm Elena Kagan to the Supreme Court. Her record is unusually slim for a Supreme Court nominee, and her confirmation hearings revealed little more about her approach to the law. Yet there are red flags in her record. Kagan has demonstrated a disregard for those laws and constitutional rights she disagrees with, from the…

  • Commentary posted May 27, 2010 by Deborah O'Malley Empathy for Mass Murderers?

    Today, the Senate Judiciary Committee will likely vote on whether to promote District Judge Robert Chatigny to a life-tenured seat on the Second Circuit Court of Appeals. Any citizen who expects judges to bring the most heinous criminals to justice should be seriously concerned about this nomination. In an infamous 2005 case, Chatigny, a judge on the U.S. District…

  • WebMemo posted July 10, 2009 by Deborah O'Malley, Robert Alt Key Questions for Sonia Sotomayor

    Since Judge Sonia Sotomayor was nominated for the Supreme Court by President Barack Obama, she has received fierce criticism for a number of her public statements and court opinions that reveal a troubling judicial philosophy. She has questioned whether judges can and should set aside personal bias, mocked the idea that judges do not "make law," and argued that…

  • Commentary posted May 27, 2009 by Deborah O'Malley Sotomayor Doesn't Live Up to Obama's Word

    President Obama wants Second Circuit Judge Sonia Sotomayor to fill Justice David Souter's seat on the Supreme Court. But her nomination paints a grim picture of the Supreme Court's future for those who believe the law should be interpreted according to its original meaning. Obama says that an important quality in a nominee is the recognition of the limits of…

  • Commentary posted February 6, 2009 by Deborah O'Malley Deputy AG Nominee Should be Questioned on Importing International Law

    Today the Senate Judiciary Committee takes up the nomination of David Ogden to the position of Deputy Attorney General, the second-highest position in the Justice Department. His credentials aside, there's reason to think he lacks the proper understanding of our Constitution necessary to fill this important post. Specifically, questions have been raised about his…

  • Commentary posted October 25, 2008 by Deborah O'Malley Misunderstanding the Role of Judges

    In his recent endorsement of Barack Obama, Colin Powell mused: "I would have difficulty with two more conservative appointments to the Supreme Court, but that's what we'd be looking at in a McCain administration." While Powell is correct in highlighting the importance of judicial issues in the upcoming election, his comments reveal an all-too-common…

  • Commentary posted October 24, 2008 by Deborah O'Malley A bad Biden benchmark

    Twenty-one years ago today, a cabal of liberal senators prevented one of the greatest legal minds of the 20th century from sitting on the Supreme Court. Robert Bork, then a judge on the D.C. Circuit Court of Appeals and a former solicitor general, lost by a vote of 58-42 - an outcome Sen. Joseph Biden praised in his recent debate with Gov. Sarah Palin. Mr. Biden…

  • Commentary posted October 9, 2008 by Deborah O'Malley Looking for Law in All the Wrong Places

    Some Supreme Court justices have taken to using international law as a reference point to interpret provisions of the U.S. Constitution. Yale Law School Dean Harold Koh applauds the practice, hailing these justices for ushering in the dawn of a "transnationalist jurisprudence." Not everyone is as pleased. Many -- lawyers and laymen alike -- think it shows a…

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