by Gerald Boerner
We continue our series on the possible candidates for the nomination to replace Justice John Paul Stevens when he retires this June. Today’s candidate is Janet Napolitano who is currently Secretary for Homeland Security and formerly was the governor of Arizona.
Some critics feel that we have had too many Ivy Leaguers on the court, especially from the Harvard and Yale Law Schools. In addition, it is said that Obama is determined “…to put somebody who’s actually run for elective office on the Supreme Court.” Napolitano would meet these criteria. But the race is still open and up for grabs. GLB
“Fidelity is the sister of justice.”
“A society that has more justice is a society that needs less charity.”
— Ralph Nader
“Justice is my being allowed to do whatever I like. Injustice is whatever prevents my doing so..”
— Samuel Butler
“Justice will not come to Athens until those who are not injured are as indignant as those who are injured.”
“Next in importance to freedom and justice is popular education, without which neither freedom nor justice can be permanently maintained.”
— James A. Garfield
“Justice Ginsburg is a very competent justice, and it is a joy to have her on the court, but particularly for me it is a pleasure to have a second woman on the court.”
— Sandra Day O’Connor
“Justice is an unassailable fortress, built on the brow of a mountain which cannot be overthrown by the violence of torrents, nor demolished by the force of armies.”
— Joseph Addison
“I cannot lead you into battle. I do not give you laws or administer justice but I can do something else – I can give my heart and my devotion to these old islands and to all the peoples of our brotherhood of nations.”
— Queen Elizabeth II
Supreme Court Candidates: Janet Napolitano
President Barack Obama has made one appointment to the Supreme Court of the United States, that of Judge Sonia Sotomayor to fill the vacancy created by the retirement of Associate Justice David H. Souter. Sotomayor was confirmed by the United States Senate on August 6, 2009. He will additionally have the opportunity to fill the vacancy created by John Paul Stevens, who has announced his intention to retire at the end of the court’s term in June 2010. Speculation has also focused on the potential retirement of 77-year-old Ruth Bader Ginsburg, who has been diagnosed with pancreatic cancer.
Demographic considerations have played into the appointment of Supreme Court justices since the institution was established. Starting in the twentieth century, these concerns shifted from geographic representation to issues of gender and ethnicity.
Prior to the 2008 presidential election, many court watchers suggested that the next president would be under significant pressure to appoint another woman or ethnic minority to the court. The case for naming more women was particularly widespread given the recent retirement of Sandra Day O’Connor and the rapidly changing demographics of the legal community, with women now accounting for about a fifth of all law partners and law school deans, a quarter of the federal bench, and nearly half of all law school graduates. Shortly before the election, for example, NPR reported, "Most observers of the Supreme Court agree about one thing: The next nominee is likely to be a woman". Furthermore, after Obama’s presidential election victory, Hispanic legal interests groups such as the Hispanic National Bar Association began urging Obama to nominate a Hispanic justice.
Given the relative youth of the most recent Republican appointments, it was also noted that Democrats had, "a strong incentive to pick younger justices this time around". Age proved to be an important consideration for Obama, who was "looking for a justice who will be an intellectual force on the court for many years to come". As a result, Obama did not seriously consider candidates such as Jose Cabranes, Amalya Kearse, Diana Gribbon Motz, David Tatel, and Laurence Tribe, all of whom he respected but were older than 65 when Obama was looking to replace David Souter.
Introducing Janet Napolitano
Janet Napolitano (Born: 1957) is the third and current United States Secretary of Homeland Security, serving within the administration of President Barack Obama. A member of the Democratic Party, she was the 21st Governor of Arizona from 2003 to 2009. She was Arizona’s third female governor, and the first woman to win re-election. Prior to her election as governor, she served as Attorney General of Arizona from 1999 to 2002.
On December 1, 2008, President-elect Obama announced his intention to nominate Napolitano as United States Secretary of Homeland Security. She was sworn into office on January 21, 2009, after being confirmed by the United States Senate. She is the first woman to serve in that office.
Janet Napolitano was born on November 29, 1957 in New York City, the daughter of Jane Marie (née Winer) and Leonard Michael Napolitano, who was the Dean of the University of New Mexico School of Medicine. She is of Italian heritage and is a Methodist. She was the oldest of three children; she has a younger brother (Leonard Jr.) and a sister (Nancy). She was raised in Pittsburgh, Pennsylvania, and Albuquerque, New Mexico, where she graduated from Sandia High School in Albuquerque in 1975 and was voted Most Likely to Succeed. She graduated from Santa Clara University in Santa Clara, California, where she won a Truman Scholarship, and was valedictorian. She then received her Juris Doctor (J.D.) from the University of Virginia School of Law. After law school she served as a law clerk for Judge Mary M. Schroeder of the United States Court of Appeals for the Ninth Circuit, and then joined Schroeder’s former firm, the Phoenix law firm Lewis and Roca.
In 1991, while a partner with the private Phoenix law firm Lewis and Roca LLP, Napolitano served as an attorney for Anita Hill. Anita Hill testified in the U.S. Senate that then U.S. Supreme Court nominee Clarence Thomas had sexually harassed her ten years earlier when she was his subordinate at the federal EEOC.
In 1993, Napolitano was appointed by President Bill Clinton as United States Attorney for the District of Arizona. As U.S. Attorney, she was involved in the investigation of Michael Fortier of Kingman, Arizona, in connection to the Oklahoma City bombing. She ran for and won the position of Arizona Attorney General in 1998. Her tenure focused on consumer protection issues and improving general law enforcement.
While still serving as attorney general, she spoke at the 2000 Democratic National Convention just three weeks after having a mastectomy. Napolitano recalls that the pain was so unbearable that she couldn’t stand up. "Work and family helped me focus on other things while I battled the cancer," says Napolitano. "I am very grateful for all the support I had from family, friends and Arizonans."
She narrowly won the Arizona gubernatorial election of 2002 with 46 percent of the vote, succeeding Republican Jane Dee Hull and defeating her Republican opponent, former congressman Matt Salmon, who received 45 percent of the vote. She was Arizona’s third female governor and the first woman in the United States to be elected governor to succeed another elected female governor. She spoke at the 2004 Democratic Convention after some initially considered her to be a possible running mate for presidential candidate Sen. John Kerry in the 2004 presidential election but Kerry selected Sen. John Edwards instead. In November 2005, Time magazine named her one of the five best governors in the U.S.
As Governor, Napolitano set records for total number of vetoes issued. In 2005, she set a single session record of 58 vetoes, breaking Jane Dee Hull’s 2001 record of 28. This was followed in June 2006, less than four years into her term, when she issued her 115th veto and set the all-time record for vetoes by an Arizona governor. The previous record of 114 vetoes was set by Bruce Babbitt during his nine years in office. By the time she left office, the governor had issued 180 vetoes.
In November 2006, Napolitano won the gubernatorial election of 2006, defeating the Republican challenger, Len Munsil, by a nearly 2–1 ratio and becoming the first woman to be re-elected to that office. Arizona’s constitution provides a two-consecutive-term term limit for its governors, meaning Napolitano would have been barred from seeking a third term in office in 2010.
In January 2006, she won the Woodrow Wilson Award for Public Service. She was a member of the Democratic Governors Association Executive Committee. Furthermore, she has also served previously as Chair of the Western Governors Association, and the National Governors Association. She served as NGA Chair from 2006 to 2007, and was the first female governor and first governor of Arizona ever to serve in that position.
Secretary of Homeland Security
In February 2006, Napolitano was named by The White House Project as one of "8 in ’08", a group of eight female politicians who could possibly run for president in 2008. On January 11, 2008, Napolitano endorsed then Illinois Senator Barack Obama as the Democratic nominee for president. On November 5, 2008, Napolitano was named to the advisory board of the Obama-Biden Transition Project. On December 1, 2008, Barack Obama introduced Napolitano as his nominee for United States Secretary of Homeland Security. On January 20, 2009, Napolitano was confirmed, becoming the first woman appointed Secretary in the relatively new department. Arizona Secretary of State Jan Brewer became the governor of Arizona, as the state does not have a lieutenant governor.
In March 2009, Napolitano told the German news site "Spiegel Online" that while she presumes there is always a threat from terrorism: "I referred to ‘man-caused’ disasters. That is perhaps only a nuance, but it demonstrates that we want to move away from the politics of fear toward a policy of being prepared for all risks that can occur." In April 2009 Napolitano, trying to defend her plans to thicken US-Canadian border security, claimed incorrectly that September 11 attack perpetrators entered the United States from Canada. Her comments provoked an angry response from the Canadian ambassador, media, and public.
In response to criticism, she later said, "Nonetheless, to the extent that terrorists have come into our country or suspected or known terrorists have entered our country across a border, it’s been across the Canadian border. There are real issues there". Though there has only been one case, that of Ahmed Ressam an Algerian citizen who was in Canada illegally. According to the Canadian Security Intelligence Service CSIS he was "under surveillance" the entire time.
Right-Wing Extremism Memo Controversy
Napolitano was the subject of controversy after a Department of Homeland Security threat assessment report initiated during the administration of George W. Bush, entitled "Rightwing [sic] Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment," was made public in April 2009. The report suggested several factors, including the election of the first black or mixed race President in the person of Barack Obama, perceived future gun control measures, illegal immigration, the economic downturn beginning in 2008, the abortion controversy, and disgruntled military veterans’ possible vulnerability to recruitment efforts by extremist groups as potential risk factors regarding right-wing extremism recruitment.
On April 16, 2009, the Thomas More Law Center, a conservative Christian public interest law firm based in Ann Arbor, Michigan, filed suit against DHS on behalf of controversial radio talk show host and political commentator Michael Savage, executive director of the Center for Bio-Ethical Reform Gregg Cunningham, and Iraqi War Marine veteran Kevin Murray. Savage stated that the document "encourages law enforcement officers throughout the nation to target and report citizens to federal officials as suspicious right-wing extremists and potential terrorists because of their political beliefs."
Napolitano made multiple apologies for any offense veterans groups had taken at the reference to veterans in the assessment, and promised to meet with those groups to discuss the issue. The Department of Homeland Security admitted a "breakdown in an internal process" by ignoring objections by the Office of Civil Rights and Civil Liberties to an unnamed portion of the document.
While the American Legion reportedly criticized the assessment, Glen M. Gardner Jr., the national commander of the 2.2 million-member Veterans of Foreign Wars, defended it generally, saying it "should have been worded differently" but served a vital purpose. "A government that does not assess internal and external security threats would be negligent of a critical public responsibility," he said in a statement.
"The System Worked" Controversy
Sec. Napolitano was criticized for stating in an interview with CNN’s Candy Crowley that, "the system worked" with regard to an attempted terrorist attack on Northwest Airlines Flight 253 approaching Detroit, Michigan on Christmas Day 2009. She later went on NBC’s Today Show with host Matt Lauer and stated that the security system had indeed failed.
The statement by Napolitano to Crowley that received criticism was as follows:
What we are focused on is making sure that the air environment remains safe, that people are confident when they travel. And one thing I’d like to point out is that the system worked. Everybody played an important role here. The passengers and crew of the flight took appropriate action. Within literally an hour to 90 minutes of the incident occurring, all 128 flights in the air had been notified to take some special measures in light of what had occurred on the Northwest Airlines flight. We instituted new measures on the ground and at screening areas, both here in the United States and in Europe, where this flight originated. So the whole process of making sure that we respond properly, correctly and effectively went very smoothly.
Supreme Court Candidate
Secretary Napolitano is reportedly on the short list of candidates to replace retiring Supreme Court Justice John Paul Stevens.
In the Press…
Bob Adelmann, in his “Will Obama Nominate Napolitano for the Supreme Court?” article in New American makes several useful observations about the confirmation hearing process. (See below for the link to the full article in the References section.)
Evidence is mounting that Obama will have another opportunity to appoint a justice to the Supreme Court when Justice Stevens retires next summer.
Justice John Paul Stevens, age 89, raised some eyebrows when he hired just one law clerk to his staff for the current term. Full-time Justices can hire as many as six clerks, and retired Justices usually hire two.
Speculation as to who might be nominated to replace Stevens was fueled by NBC’s Chuck Todd’s suggestion (to Laura Ingraham on her radio show) that Janet Napolitano would soon resign her post as Secretary of Homeland Security in order to be available for the nomination:
Personally, [Obama] likes her probably more than any other cabinet secretary outside of [Robert] Gates on a personal comfort zone. I think he’s determined to put somebody who’s actually run for elective office on the Supreme Court. You know, we’re in the first Supreme Court, I think in a hundred years, that hasn’t had somebody with elective office experience at any point in time. He’s talked about wanting that as a criteria…. He’s a big fan of hers.
President Obama has made himself abundantly clear about his position on appointing justices to the Supreme Court. As a Senator, Obama expounded on his “empathy” standard to explain why he voted against Justice John Roberts as Chief Justice:
While adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy…. In those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.
Instead of looking to original intent (see this author’s article on this), Obama wants his justices instead to be “somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges.”
In a recent New York Times article, Neil Lewis pointed out that Obama "would be able to — and fellow Democrats certainly expect him to — reverse or even undo the current conservative dominance of the courts.” This position flies in the face of what Americans want from the Supreme Court. A recent Rasmussen Report indicates that 36 percent of likely voters consider the Supreme Court to be “too liberal”, while only 20 percent consider it to be “too conservative.” And 70 percent of those polled think that the Supreme Court should “make decisions based on what’s written in the Constitution and legal precedents,” versus 25 percent who think that it should “be guided mostly by a sense of fairness and justice.”
How well would Janet Napolitano measure up to Obama’s “empathy” standard?
Putting aside her immediate difficulties as Secretary of Homeland Security, she was busy as Governor of Arizona voting against restrictions on eminent domain that would have kept local governments from taking private property from some owners and giving it to others, as well as voting against the Second Amendment in two important bills that had already passed the state legislature.
She also voted against several pro-life measures, including bans on partial-birth abortion and taxpayer funding of abortion.
If Justice Stevens retires, and if Napolitano is appointed to replace him, will that tip the scales of justice? According to UPI, probably not.
Named to the High Court by President Gerald Ford in 1975 and expected to be a conservative, Justice Stevens became more liberal over time, and now is considered to be “the liberal lion of the Supreme Court.” If Napolitano did replace Stevens, little if anything would "change."
Background and biographical information is from Wikipedia articles on:
Wikipedia: Janet Napolitano…
Wikipedia: Barak Obama Supreme Court Candidates…
Other Web Sites:
New American: “Will Obama Nominate Napolitano for the Supreme Court?”…
Brainy Quote: Justice Quotes…