Supreme Court – Page 140

Detroit News on a Possible Granholm SCT Nomination

April 16, 2010Matthew L.M. Fletcher

Gov. Jennifer Granholm is apparently on the short list for the U.S. Supreme Court, to fill the vacancy of retiring Justice John Paul Stevens. Her nomination would be an interesting, unusual choice.

Granholm is included along with more conventional candidates such as U.S. Solicitor General Elena Kagan, former dean of Harvard’s law school and several federal appellate court judges. The other political figure prominently mentioned as a candidate is Homeland Security Secretary Janet Napolitano, former governor of Arizona.

If Granholm is nominated, it will break at least one pattern: all of the current justices are former federal appellate court judges.

It would mark a return to a previous style in nominations, in which political figures were named to the court, such as former California Gov. Earl Warren and former Michigan Gov. Frank Murphy. Murphy distinguished himself in the high court’s history by being one of the few justices to dissent from a now embarrassing Supreme Court ruling during World War II approving the West Coast round-up and removal to remote camps of Americans of Japanese descent.

Granholm would bring to the court political experience as a former governor and state attorney general, albeit one whose gubernatorial record, including a brief government shutdown and a controversial tax hike, has been a disappointment, though she did win a second term against a novice but well-funded opponent.

As one court watcher, Russell Wheeler of the Brookings Institution, told The News, a Granholm strength is that she would “bring empathy as the governor of a state that has had such high unemployment.”

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United States Cert Opposition Brief in Sharp Petition

April 15, 2010Matthew L.M. Fletcher

Other briefs and lower court materials are here.

Here is the government’s opposition: US Cert Opp

NNNABA Letter to Obama re: American Indian Supreme Court Nominee

April 15, 2010Matthew L.M. Fletcher

Here: NNABA Letter to Obama Re Native on SCt April 2010

Supreme Court Nominee Shortlist Part 2 — Gov. Jennifer Granholm & Harold Koh

April 14, 2010April 15, 2010Matthew L.M. Fletcher1 Comment

This edition of our review of the Supreme Court nominee shortlist is short (because I’m on my way to a faculty meeting) — and is just two persons, neither of whom is a sitting judge making the objective judgment that much harder. Part I is here.

4. Gov. Jennifer Granholm

We got excited about her a year ago when some excitable people in Lansing heard she was going to D.C. for a high-level, public appearance with President Obama (turned out to be something else related to the auto industry).

Gov. Granholm has been the governor of the State of Michigan for nearly two full terms.

She has signed the following agreements with Michigan tribes:

Intergovernmental Climate Accord (6-11-09)
Tribal Water Accord (2004)
Economic Accord -SOS-OGC (2005)
Economic Accord (2006)

And issued an executive directive on inter-governmental relations with Indian tribes in 2004.

Her administration has negotiated and signed several Class III gaming compacts (LTBB, Gun Lake, and LRB, to name a few), as well as a few off-reservation gaming agreements couched as land claims settlements (BMIC and Sault Tribe).

In short, a long record with dealing in Indian affairs in Michigan. Some say she’s only interested in tribes as a cash cow. Some say she’s outstanding. Some say both (like me).

5. Harold Honju Koh, Legal Advisor to the Secretary of State

As far as I can tell, he has no Indian law experience at all, save one case — a NAFTA arbitration involving a claim by Six Nations Grand River Enterprises, a Indian-owned enterprise located in Ontario that does business importing smokes into Indian Country. Koh gave the opening argument in the arbitration. His comments are not yet public, though will be eventually. But the gist is that the Obama Administration is committed to tribal sovereignty, except in regards to the exercise of tribal sovereignty to sell tobacco (something observers of the PACT Act already knew).

More to come.

2010 Edition: Possible Supreme Court Nominees and Their Indian Law Records (Part I)

April 12, 2010April 26, 2010Matthew L.M. Fletcher4 Comments

As we did after Justice Souter’s retirement, we’ll profile a few of the possible nominees to replace Justice Stevens. We’ll focus on the short-list supplied recently by the NYTs. Today we focus on Kagan, Wood, and Garland (the judges), in no particular order.

1. USSG Elena Kagan

Solicitor General Kagan does not appear to have worked on any Indian law cases prior to her time in government, but she did spend a great deal of time in the Clinton White House. She may have run across some tribal questions then, but I don’t know of any. Her experience as dean of Harvard Law School once put her in the position of managing the Oneida Chair at Harvard Law School, which continues to utilize visitors instead of hiring a permanent, full-time Indian law-focused faculty member. And, as this post notes, Harvard hired nary a single Black, Latino/a, or American Indian faculty in her tenure (out of 29 hires).

Since becoming Solicitor General, Kagan has participated in the following cases: United States v. Tohono O’odham Nation (cert petition stage); Wolfchild v. United States (cert opposition); Barrett v. United States (cert opposition); Navajo Nation v. USFS (cert opposition); Marceau v. Blackfeet Housing Authority (cert opposition); and a few Indian Country criminal cases. It is not clear at all what amount of participation she had in each of these cases, nor are any of these cases ones in which the government could have chosen sides (as amicus).

2. CA7 Judge Diane Wood

Judge Wood sits on the Seventh Circuit, which doesn’t hear very many Indian law cases, but she does have a significant track record.

She wrote the majority opinion in U.S. v. Long (2003), in which the court upheld the Duro fix prior to the Supreme Court’s decision in U.S. v. Lara. In Wisconsin v. EPA (2001), she wrote the majority opinion, in which the court held that the EPA’s decision to grant treatment-as-state status to the Sokaogon Chippewa Community was reasonable. InSokaogon Chippewa Community v. Babbitt (2000), she wrote the majority opinion in a case the court held it was reasonable for the district court to reject the St. Croix Chippewa Tribe’s motion to intervene in a gaming case involving three other Wisconsin tribes. In Thomas v. United States (1999), she wrote the majority opinion holding that the LCO Chippewa Band’s tribal council was not a necessary party to a claim challenging the outcome of a Secretarial election. In Burgess v. Walters (2006), she wrote the majority opinion upholding the State of Wisconsin’s action in committing an Indian based on the PL280 criminal/prohibitory — civil/regulatory analysis.

Unfortunately, Judge Wood joined Judge Posner’s recent opinion in Menominee Tribe Enters. v. Solis (2010) extending OSHA’s application to Indian businesses.

Judge Wood’s opinions in her several Indian law cases demonstrate that she is fairly respectful to Indian tribes and to tribal sovereignty. Wisconsin and Long could have easily gone the other way. Even in the cases she were rules against tribal interests, she does not denigrate Indians and tribes in any way.

3. CADC Judge Merrick Garland

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The Indian Law Legacy of Justice Stevens

April 9, 2010Matthew L.M. Fletcher2 Comments

Justice Stevens’ retirement this summer allows us a chance to review his legacy in relation to federal Indian law and policy. Justice Stevens ascended to the Supreme Court as the sole appointee of President Ford in late 1975. He voted in exactly 100 cases related to Indian law and tribal interests during that period.

Loosely speaking, Justice Stevens is the sitting Justice most likely to support tribal interests in the last decade, but his voting record in the 1980s and 1990s was overwhelmingly opposed to tribal interests. His seeming reversal in this context is fairly remarkable.

Justice Stevens generally speaking favored tribal interests in treaty rights cases and statutory interpretation cases (less so), but was a serious opponent in tribal immunity and taxation cases.

The Stats

Overall voting record: 31 votes in favor of tribal interests; 63 votes against; and 7 votes unclassifiable.

Voting from 1976-1983: 14 votes in favor; 20 votes against; 1 unclassifiable

Voting from 1985-2000: 9 votes in favor; 41 votes against; 4 unclassifiable

Voting from 2001-2009: 8 votes in favor; 2 votes against; 1 unclassifiable

Important Indian Law Opinion Favoring Tribal Interests by Stevens, J.

Washington v. Fishing Vessel Assn (U.S. v. Washington) (1979): Justice Stevens headed a 6-3 majority upholding Judge Boldt’s 50-50 split in Indian/non-Indian fishing rights in the Stevens Treaties (what a coincidence!) case. Justice Stevens’ footnote suggesting that tribal fishers would be very unlikely to meet the 50 percent capacity reserved to them, later scholarship demonstrated, perhaps swayed enough of the Court to affirm Judge Boldt’s rule in pertinent part.

Well, that’s about it for significant opinions for the Court authored by Justice Stevens favoring tribal sovereignty.

Brendale: Justice Stevens authored the plurality opinion, joined only by one other Justice (O’Connor), splitting the baby in this tribal regulatory authority case. He held that the tribe had authority to assert land use regulatory authority over non-Indians and non-Indian lands in the “closed” part of the Colville Reservation, but not in the “open” part of the reservation. This confusing decision likely has no import after cases like Strate and Hicks.

Justice Stevens authored dissents in several cases favoring tribal sovereignty, especially in recent years.

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Justice Stevens WILL Retire This Summer

April 9, 2010Matthew L.M. Fletcher

From USA Today:

Supreme Court Justice John Paul Stevens, the court’s oldest member and leader of its liberal bloc, is retiring. President Barack Obama now has his second high court opening to fill.

Justice Stevens said Friday he will step down when the court finishes its work for the summer in late June or early July. He said he hopes his successor is confirmed “well in advance of the commencement of the court’s next term.”

His announcement had been hinted at for months. It comes 11 days before his 90th birthday.

Justice Stevens began signaling a possible retirement last summer when he hired just one of his usual complement of four law clerks for the next court term. He acknowledged in several interviews that he was contemplating stepping down and would certainly do so during Mr. Obama’s presidency.

The timing of his announcement leaves ample time for the White House to settle on a successor and Senate Democrats, who control 59 votes, to conduct confirmation hearings and a vote. Republicans have not ruled out an attempt to delay confirmation.

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