† Obama’s Judgment On Judges: In replacing retiring Supreme Court Justice David H. Souter President Barack Obama said he will look “beyond traditional legal experience” to find someone with “empathy,” reports The Washington Times:

"I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation," Mr. Obama said.

Still, he also said he will look for someone who "who respects the integrity of the judicial process and the appropriate limits of the judicial role." …

Liberal interest groups said in replacing him, Mr. Obama must push for a judge who will look beyond the letter of the law to consider race, and vulnerability. …

Conservative and pro-life groups, however, have vowed a fight, and said they will put pressure on moderate Democratic senators not to accept a liberal justice.

In yet another case of liberal amnesia, when The New York Times asked Judiciary Committee chairman Sen. Patrick Leahy (D-VT) whether “a reprise of the contentious nomination battles” is likely, Leahy replied: “I would hope not. But lately they have always seemed to be.” And why is that? Here’s one clue: As a Senator, Obama himself gave the thumbs down to Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., and backed Dem efforts to filibuster Alito.

Obama will look for a “nontraditional” judge – speculation is rampant that his choice will be a Hispanic, or another woman - to find one who is not so egregiously left–leaning as to ensure Repubs close ranks and peel off a couple of moderate Dems to filibuster the confirmation – taking comfort in the near certainty that his seemingly centrist nominee is likely to drift further and further left over time.

Though the majority of Supreme Court Justices proved ideologically malleable over the course of their tenures, here’s why Obama’s choice won’t be a “stealth” conservative, as Souter turned out to be a stealth liberal.

“Virtually every Justice serving since the 1930s has moved to the left or right or, in some cases, has switched directions several times,” concludes Northwestern University Law Review’s meticulously researched, “Ideological Drift Among Supreme Court Justices: Who, When, And How Important?”:

Presidents hoping to create lasting legacies in the form of Justices who share their ideologies can be reasonably certain that their appointees will behave in line with expectations - at least during the Justices’ first terms in office. But, even before hitting the first-decade mark, most Justices fluctuate, leading to a degradation of the relationship between their preferences and their votes. The implication is clear: contrary to the claims of prominent scholars, the President and his supporters in the Senate cannot guarantee the “entrenchment” of their ideology on the Court in the long, or even medium, term. …

As a result, the President may be best off placing comparatively greater emphasis on advancing the interests of his political party - rather than his own ideological interests - through the appointment of Justices designed to appease particular constituencies.

Examining Supreme Court terms from 1937 to 2005, the paper’s authors identify a dozen Justices who trended increasingly more liberal (“evolved”) over time - Blackmun, Brennan, Clark, Ginsberg, Kennedy, Marshall, O’Connor, Powell, Rehnquist, Souter, Stevens and Warren – and seven that trended increasingly more conservative - Black, Burton, Frankfurter, Jackson, Reed, Scalia, and White. Only four Justices remained ideologically “stable” throughout their high court tenures - Breyer, Murphy, Stewart and Thomas - while Douglas, Harlan and Burger were ideological “wild cards.”

But when Justices drift, why do they tend to go left instead of right?  Constitutional scholar Michael C. Dorf, Professor of Law at Cornell Law School, contends that there is a fairly reliable way to determine which justices will withstand ideological drift – or even manage to buck its leftward tide:

For nearly four decades, one single factor has proved an especially reliable predictor of whether a Republican nominee will be a steadfast conservative or evolve into a moderate or liberal: experience in the executive branch of the federal government. Those who lack such experience evolve; those who have it, do not. …

During Republican Administrations over the last four decades, to be eligible for appointment to an elite position in the Justice Department or other agency responsible for legal policy, a lawyer needed to be strongly committed to conservative legal ideology (as well as otherwise highly qualified). …

[A] President selecting a Supreme Court nominee from a pool of persons who previously worked in a simpatico Administration need not inquire about the nominee’s ideological bona fides, because he or she comes, in effect, pre-screened.

Dorf makes the case that Republican presidents chose nominees from outside the Beltway when ideological purity was secondary to another factor, such as getting a second (or third choice) confirmed after the conservative nominee had been rejected by the Senate (Nixon and Reagan); wanting to unify the country after a major political upheaval (Ford); making history by nominating the first woman to the high court (Reagan); or lacking the political capital to win confirmation of a known conservative from a Senate controlled by the opposing party (Bush 41).

† It’s Not News If It Happens To A Populist: Two-time Democratic presidential candidate John Edwards released a statement Sunday that he is cooperating with a federal probe into whether funds from his political action committee were used to support his mistress Rielle Hunter and their love child, reports The Associated Press:

''I am confident that no funds from my campaign were used improperly,'' Edwards said in the statement. ''However, I know that it is the role of government to ensure that this is true. We have made available to the United States both the people and the information necessary to help them get the issue resolved efficiently and in a timely matter.''

While Edwards focused his comment on campaign funds, he also had a range of other fundraising organizations - including two nonprofits and a poverty center at his alma mater - that have come under scrutiny.

Chief among them was the PAC that paid Rielle Hunter's company for several months in 2006 for Web videos that documented Edwards' travels and advocacy in the months leading up to his 2008 presidential campaign. The committee also paid her firm an additional $14,086.50 on April 1, 2007. …

At the time of the 2007 payment, the PAC only had $7,932.95 in cash on hand, according to records filed with the Federal Election Commission. That day, according to the records, Edwards' presidential campaign paid the PAC $14,034.61 for what is listed as a ''furniture purchase.''

Willfully converting money from a political action committee for personal use is a federal crime.

† Employers Hiring Forged Documented Aliens Are Lawbreakers In Other Ways, Too: Immigration and Customs Enforcement will resume its workplace raids – but now, the aim will be to prosecute employers who knowingly hire forged documented aliens, in addition to finding and deporting illegal workers. Predictably, The New York Times supports the first part of ICE’s new mandate, and denounces the second part:  

That is a good idea, and a break from the Bush administration method -  mass raids to net immigrant workers while leaving their bosses alone. …

[T]hey were worse than useless. They netted about 6,000 undocumented immigrants, out of 12 million, and 135 employers or supervisors. They destroyed families, tearing parents and grandparents from children, many of them citizens. …

So the new guidelines are smarter than cruel idiocy, but raids are still not a solution. They keep the country trying to arrest, prosecute and deport its way toward a working immigration system. …

Raids do not uphold or reinforce workers’ rights, a non sequitur in the world of off-the-books labor, where employers erode conditions for Americans by hiring workers at deplorable conditions and pay. They do not fix long backlogs in legal immigration, lines that extend years or decades, forcing people who want to follow the rules to make an agonizing choice between intolerable separations from their families or lawbreaking.

A better strategy, argues The Times, is to “reduce the incentive to hire the undocumented, and raise standards for all workers” by scrupulously enforcing all wage and labor laws, workplace safety regulations and encouraging unionization.

Here’s an even better idea: Comprehensive immigration enforcement reform that prosecutes employers, deports illegal aliens and enforces all immigration, labor and safety laws and regulations. Any employer that needs to resort to hiring illegal aliens off the books – forcing taxpayers to foot the bill for state and municipal welfare programs that subsidize groceries, housing and medical care – should not be in business. For far too long, taxpayers have been bailing out small businesses that would not be going concerns without violating a raft of laws.

† Never Again Or Forgive And Forget? (fourth item): A three-judge panel of the 6^th Circuit Court of Appeals in Cincinnati denied a stay of deportation, giving the green light for the Justice Department to ship accused Nazi death camp guard John Demjanjuk, 89, to Germany to face a war crimes trial on 29,000 counts of accessory to murder, reports The Associated Press.

Demjanjuk claims to suffer “severe spinal, hip and leg pain and has a bone marrow disorder, kidney disease, anemia, kidney stones, arthritis, gout and spinal deterioration,” but the government provided the court with “surveillance video … showing Demjanjuk walking unassisted to a doctor's office on April 6.” The family countered that the tape did not capture his overall medical condition, but the appellate court was unpersuaded that Demjanjuk’s trip to Germany “is likely to cause irreparable harm sufficient to warrant a stay of removal.”

His son, John Demjanjuk Jr., says the family is considering an appeal to the Supreme Court.

Should the case make it that far, The Stiletto expects Susan Estrich to file an amicus brief supporting the Demjanjuk family, considering her views on letting go of the past rather than seeking justice for the wholesale slaughter of one’s family and people in a state-sponsored mass murder.

† Living In These Mad, Mad, Madoff Times: Commenting on the “swaths” of premium-priced seats around home plate and the dugouts at the brand-spanking-new Yankee and Mets stadiums that remain unfilled, The New York Times calls the stratospheric ticket prices - up to $2,500 per at Yankee Stadium and $495 at the Mets’ Citi Field – an “overreach,” even at the 50 percent discount the Yankees were forced to offer them at. Noting that bleacher seats are still going for as much as $150 each (which means that a day at the ballpark for a family of four costs nearly half the monthly rent on an apartment in a middle class neighborhood in The Bronx), The Times wonders whether “whether the recession mercy extended to the richest fans might be wisely trickled down to the less affluent” in the taxpayer-subsidized stadium.

† Updates To Previous Posts (third item, Why We Need Gitmo): It’s looking increasingly likely that the Obama administration will reverse itself and reinstate the military commission system for prosecuting Guantánamo detainees, reports The New York Times:

Officials who work on the Guantánamo issue say administration lawyers have become concerned that they would face significant obstacles to trying some terrorism suspects in federal courts. Judges might make it difficult to prosecute detainees who were subjected to brutal treatment or for prosecutors to use hearsay evidence gathered by intelligence agencies. …

When President Obama suspended Guantánamo cases after his inauguration on Jan. 20, many participants said the military commission system appeared dead.

But in recent days a variety of officials involved in the deliberations say that after administration lawyers examined many of the cases, the mood shifted toward using military commissions to prosecute some detainees, perhaps including those charged with coordinating the Sept. 11 attacks.

“The more they look at it,” said one official, “the more commissions don’t look as bad as they did on Jan. 20.”

And certainly they don’t look as bad to President Obama as they did to candidate Obama throughout the primary and general election season. Yet more proof that he was utterly unprepared for the job he sought. Let’s all hope that Obama’s learning curve doesn’t take the form of a downward spiral when it comes to national security and winning the War on Terror (sorry, “overseas contingency operations”).

Meanwhile, testifying before the Senate Appropriations Committee, Defense Secretary Robert M. Gates admitted that up to 100 of the 241 detainees at the prison at Guantánamo Bay, Cuba, could end up held without trial in the U.S., reports The New York Times:

Mr. Gates said discussions had started this week with the Justice Department about determining how many of the Guantánamo detainees could not be sent to other countries or tried in courts. …

“What do we do with the 50 to 100 - probably in that ballpark - who we cannot release and cannot try?” Mr. Gates said in a hearing before the Senate Appropriations Committee.

He did not say whether the detainees would be imprisoned temporarily or indefinitely or under what law they would be held. The Obama administration is debating how to establish a legal basis for incarcerating detainees deemed too dangerous to be released but not appropriate to be tried because of potential problems posed by their harsh interrogations, the evidence against them or other issues. …

“The question of where the terrorists at Guantánamo will be sent is no joking matter,” Senator Mitch McConnell of Kentucky, the Republican leader, said in a statement on Thursday. “The administration needs to tell the American people how it will keep the terrorists at Guantánamo out of our neighborhoods and off of the battlefield.” …

Members of Congress were already pleading with Mr. Gates on Thursday not to send the detainees to their states. “Please not at Leavenworth,” said Senator Sam Brownback, Republican of Kansas. “This is a hot topic in my state.”

There’s only one way the Obama administration can resolve this Mother Of All NIMBYs  - forcing each state to take two of the 100 “worst of the worst” Gitmo detainees. New York has two prisons within walking distance of Ground Zero that could each house one of the state’s allotment of detainees - the Metropolitan Correctional Center and the Manhattan Detention Center (AKA "The Tombs"). New Yorkers who overwhelmingly voted for Obama – knowing he planned to close Gitmo – should have no problem with that.