U.S. Supreme Court Hears Details Of U.S. Government Land Swap

by Julianne LaJeunesse, University of New Mexico-Talk Radio News Service

The U.S. Supreme Court justices will decide on the legitimacy of a now-covered cross in the Mojave desert after hearing arguments Wednesday that claimed government land swapping does not translate to private ownership.

The case of Salazar v. Buono originated in 1999, with Frank Buono, a former park service official. Buono wrote to the National Park Service requesting the erection of a Buddhist shrine next to a cross in Sunrise Rock, a section of federal land in California’s Mojave Desert. The cross was built in 1934 by the Veterans of Foreign Wars, and in 2001 and 2002, the cross became a national war memorial that Congress said could not be dismantled using federal money.

In 2004, the Department of Defense swapped the land with the VFW in exchange for five acres elsewhere on the preserve. The question for the Supreme Court justices is now whether the memorial is on federal land.

If the Supreme Court agrees with the Court of Appeals for the Ninth Circuit, which affirmed the district court’s decision, the cross will have to be removed.

Justice Ruth Ginsberg offered a hypothetical solution for the government, suggesting the government could remove the cross, then sell the land back to the VFW.

“Then we are talking about something that is rather formal rather than substantial,” Justice Ginsberg said. “If all the government would have to do is say, 'Congress, you didn't get it right. You should have just made the land swap.' And then the government would take down the cross in compliance with the injunction, and then it goes right back the next day.”

Buono's lawyer, managing attorney for southern California's ACLU Peter Eliasberg, added to the argument that a cross, as a national war memorial, is not a proper reflection of veterans who are not Christian.

As far as the contents of the national war memorial, Justice Ruth Ginsburg asked the Department of Justice's General Solicitor Elena Kagan if the memorial could be changed by the VFW. Kagan said yes, at the discretion of the VFW.

The U.S. Supreme Court is expected to deliver a decision in following months.

Andrew Napolitano Says Governments Denied Blacks’ Rights In The Past

By Michael Combier-Talk Radio News Service

Former Judge Andrew P. Napolitano used an 1857 Supreme Court decision as a metaphor to argue that American governments have legally suspended the rights of Blacks for more than 300 years.

Judge Napolitano cited Dred Scott v. Sanford, a decision that ruled that people of African descent were not U.S. citizens, and therefore not entitled to constitutional protections.

Napolitano’s remarks came during a presentation for his new book, “Dred Scott’s Revenge: A Legal History of Race and Freedom in America,” Thursday at the CATO Institute in Washington D.C.

Said Napolitano, “a series of governments [state and federal] have not withstanding the lofty words of the Declaration of Independence...and some efforts to incorporate those ideas in the Constitution...A government that would think it could write any law, enact any policy and, enforce any program not withstanding its utter rejection of the natural law.”

To prove his point, Napolitano added that the Supreme Court upheld the Jim Crow laws of Southern states in Plessy v. Ferguson.

“These are examples, historic and modern, of government thinking that it can do away with the natural law, that it can suspend the free will of a class of human beings.”

For Napolitano, the Constitution is “a glorious liberty document, with obviously some defect in it. It is for the first time in the history of the world the inverse of the way liberty came about...It is the greatest document for the preservation of human liberty ever written in the Western world.”

Sotomayor Nomination Backed By Coalition Of Latino Law Professors

By Michael Combier-Talk Radio News Service

Supreme Court nominee Sonia Sotomayor’s academic achievements and her extensive work as a judge on previous benches separates her from previous nominees, said a number of law professors from the organization Hispanics for a Fair Judiciary (HFJ) today during a conference call marking the announcement of a coalition of Latino law professors from around the country to support Sotomayor’s nomination by the U.S. Senate.

“[HFJ] applaud President Obama’s nomination of Judge Sotomayor...Judge Sotomayor is eminently qualified for the position of a Supreme Court Justice,” said Reynaldo Valencia, Professor and Associate Dean at St. Mary’s University School of Law.

Valencia added that Sotomayor “has served in a variety of capacities and has a broad base experience in the legal community...which would help her reach fair-minded and moderate decisions as she has done both as a district judge and now on the Court of Appeals.”

Responding to the criticism of conservatives that she is a racist judge, Bertha Hernandez, Professor of Law at the University of Florida College of Law, said that after having thoroughly read her past decisions people would experience a “pull back from this initial, very politicized rhetoric and energetic reaction to a real honest and candid review of the cases and the substance of these cases.”

Professor Valencia pointed out that “Judge Sotomayor was originally appointed to the Federal bench by a Republican President and elevated to the Second Circuit by a Democratic President” while the Congress has found her in two occasions to be very qualified for her positions.

HFJ was formed in 2005 to provide Hispanic leaders a platform to voice matters related to the U.S. judicial system.

Sotomayor's Classmates Say She Is Perfect For The Job

By Michael Combier-Talk Radio News Service

Yale University classmates and supporters of President Obama’s nominee for the Supreme Court, Sonia Sotomayor, say she is perfect for the job.

Currently a judge of the Second U.S. Circuit Court of Appeals, Sonia Sotomayor is President Obama’s choice to replace Justice Souter on the bench of the Supreme Court. If confirmed by the Senate, she would be the third woman and the first hispanic to serve on the U.S. Supreme Court.

On a conference call with reporters yesterday,, Martha L. Minow, now a professor at Harvard Law School, said that the decisions Sotomayor has made as a judge on Second U.S. Circuit Court of Appeals will positively influence her role as a judge of the United States Supreme Court.

Sotomayor “really shows,even in her role as an appelate judge, her knowledge as a litigator and then a district court judge about the importance of procedural rules and using the factual records. That is very notable because it shows a great deal of craft,” said Minow.

Sotomayor’s nomination is “a superb appointment because this is a lawyer’s lawyer. Someone who actually understands all the way down,how the craft of law works, and how working with facts and law required close reading of both,” Minow said.

As to Sotomayor’s judgement on free speech and cases dealing with the first amendment, “she takes each case as it comes and looks very much at the details of the facts,to decide on which way the constitutional analysis ought to go,” said Paul Smith, a lawyer who was another classmate of Sotomayor’s at Yale. He said that “she is focused on not just broad doctrine but how the doctrine applies to particular situations.”

“Judge Sotomayor is not a judge that goes out on a limb to impose her view of the law” but is “one that overturn decisions or practice anymore than necessary,” said Scott Moss,Professor at University of Colorado Law School.

Citing Ricci v. DeStefano, which is currently in the hands of the Supreme Court, Sotomayor moved in favor of the withdrawal of the debated test.The case involves the city of New Haven,Conn., and its decision to base future promotions in its firefighting force on a written test. The results were invalidated by the city after none of the African-American candidates and only two Hispanics qualified for the promotion. In their opinion for Ricci, the Second US Circuit Court of Appeals,including Judge Sotomayor, “expressed real sympathy for the plaintliffs” but that the three judges “were bound with previous decisions made in the area” and that they will not change the lower court’s decision, said William P. Marshall, Professor at University f North Carolina School of Law.

Sotomayor’s role showed “her instincts for judicial restraints” said Marshall.

Responding to a question on Sotomayor’s decisions on the second amendment that protects a right to keep and bear arms, Minow said that she was “cautious,careful, deciding only what is needed to be decided” but that she has given views only on a limited number of cases.

Hillary critics fight campaign finance rules

By Candyce Torres, University of New Mexico-Talk Radio News Service. Today the U.S. Supreme Court heard oral arguments in Citizens United v. Federal Election Commission. A corporation produced a film documentary about Hillary Clinton. The corporation wanted to show the documentary in theaters and make it available on video-on-demand cable TV services during the presidential primary. It also wanted to advertise it on television. The Bipartisan Campaign Reform Act (BCRA), also known as McCain-Feingold, prohibits corporate-funded electioneering communications from being aired within a certain time frame before an election and requires disclosure of the sources of funding. The question before the court was whether these limits and disclosure rules are unconstitutional as applied in this case. All Justices struggled with drawing a distinction between 60-second campaign ads normally aired on TV and the 90-minute documentary. Justice Ginsburg expressed concern regarding the content of the video because it displayed things worth remembering which would cause one to form negative opinions about a candidate before voting, just as all campaign advertisement do. Justice Kennedy also stated that if the Court found the regulation of this film unconstitutional that this whole statute would then fall. He argued that a more subtle message could have been just as effective as a 90 minute film. Justice Ginsburg noted that this film had been previously compared to Fahrenheit 9/11, but the difference is that Michael Moore’s film was not financed by corporate funds. A decision in the case will likely be delivered in May.