Back in 2009, when President Obama chose Judge Sonia Sotomayor as his first Supreme Court nominee, the White House expected that her compelling personal story, sterling credentials, and experience both as a prosecutor and, for 17 years, as a federal judge would win broad bipartisan support for her nomination. There was, in fact, no plausible reason for any senator to vote against her.
The president’s hope was Senator Mitch McConnell’s fear. In order to shore up his caucus, the Senate Republican leader asked a favor of his friends at the National Rifle Association: oppose the Sotomayor nomination and, furthermore, “score” the confirmation vote. An interest group “scores” a vote when it adds the vote on a particular issue to the legislative scorecard it gives each member of Congress at the end of the session. In many states, an N.R.A. score of less than 100 for an incumbent facing re-election is big trouble.
Based on numbers of hits, and a nice review of the year, here is the First Top Ten Indian Law Stories of the Year:
- Wells Fargo v. Lake of the Torches EDC. The effort by the bank to force Lac du Flambeau to pay its obligations had been shut down by the conclusion of a federal court that the trust indenture was a gaming management contract. A Seventh Circuit appeal was briefed and argued, and is pending. Posts are here and here.
- Tribal Law and Order Act. Congress finally passed a piece of legislation geared at dealing with a national problem — the incredible rise of violent crime in Indian Country, and most especially violence against Indian women. Top posts are here and here.
- Challenges to the PACT Act. Congress’s effort to destroy what remains of Indian country tobacco sales over the internet was initially enjoined, but that injunction was lifted. The cases are now pending in the Second Circuit. Top posts here and here.
- Gun Lake Band Casino news. The Gun Lake Band finally began construction on its casino after more than a decade of legal challenges, only to face a difficult financing market. Posts are here and here.
- Bay Mills Indian Community opens casino in Vanderbilt, MI on fee land. Would probably be number 1 or 2 if it happened earlier in the year. Posts here and here.
- Chief Justice Roberts dissent in North Carolina v. South Carolina. Mountain out of a molehill? Maybe, but still…. Post here.
- Bloomberg report on Foxwoods default. Old news, but continuing to be important. Post here.
- Elena Kagan Appointment to Supreme Court. Plenty of speculation here on her (lack of an) Indian law record. Top posts here and here.
- Supreme Court 2010 October Term Preview. Here.
- Possible Keith Harper Appointment to Tenth Circuit. Here.
Honorable mentions include the indictment of former Sault Ste. Marie tribal official Fred Paquin; Walter Echohawk’s new book; federal court challenges to consecutive sentences by tribal courts; the Saginaw Chippewa reservation boundaries settlement, and the passing of Phil Frickey.
Update (2:30 PM): Obviously, as Alex Skibine noted in the comments section, the Cobell settlement was a huge story for the year, while probably happening too late in the year to generate enough hits to make the top ten list. Same goes for President Obama’s announcement of support for the UN DRIP.
From the Boston Globe:
NOW THAT the Senate has confirmed Elena Kagan to the Supreme Court, there will be post-mortems about the confirmation process. Many members of the Judiciary Committee criticized Kagan for her admiration of Justice Thurgood Marshall, for whom she clerked. I also clerked for Marshall, and found that these criticisms revealed not only a lack of knowledge of Marshall’s precise adherence to rules and precedent but also a failure to appreciate the significance of his contributions to American law. Kagan’s confirmation is not only a victory for her, but also a confirmation of Marshall’s enduring legacy.
In the confirmation process, Republican Senator Jeff Sessions of Alabama questioned Marshall’s concern for “the little guy.’’ Senator John Cornyn of Texas labeled him “a judicial activist.’’ Senator Chuck Grassley of Iowa announced that Marshall’s legal views “do not comport with the proper role of a judge or judicial method.’’
They seemed determined to find some way to paint then-Solicitor General Elena Kagan as someone other than the accomplished and mainstream lawyer that she is. As Washington Post columnist Dana Milbank put it, “Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint . . . added to the Episcopal Church’s list of ‘Holy Women and Holy Men,’ which the Episcopal Diocese of New York says ‘is akin to being granted sainthood.’ ’’