Monday, April 5, 2010

Justice Klobuchar and Unallotment

April 5, 2010

Amy Klobuchar for the Supreme Court

Easter Sunday morning news shows raised Senator Klobuchar as a potential replacement on the Supreme Court replace Justice John Paul Stevens when it retires this year or in the future. While there are some attractive features to her nomination, the odds are against it.

First the case for her. Klobuchar is a member of the Senate and the belief is that it would be hard for the Senate to refuse one of her own in a confirmation hearing. In addition, she is female and Obama might like the idea of placing another woman on the bench, especially with Ginsburg ailing and perhaps retiring in the future. Third, she is young and if confirmed she could be on the Court for years. As a former prosecutor she also looks good and might appease some of the law and order types. Finally, she really is a moderate and her nomination would not incite the ire of many conservatives worried that Obama was seeking to place another liberal on the bench.

However, while all of these factors make her attractive, there are reasons against her nomination. For one, the recent trends on the Supreme Court are to select from those with lower court experience. Candidates without judicial experience were more common a generation or so ago, less common today. Klobuchar does not have this experience and this suggests against it. Second, while the Democrats will rally around her no matter what, her nomination would not excite liberals and would probably not see her ideologically as replacing Stevens. Finally, for all the reasons that make her attractive it is not clear the Republicans will be happy with anyone Obama selects and therefore it may be overblown regarding how much her assets are really assets.

Reapportionment and Waiting for the Minnesota Supreme Court

On March 15, the Minnesota Supreme Court heard oral arguments regarding Governor Pawlenty’s use of unallotment last July, 2009 to address the budget shortfall. Many are guessing when the decision will be released and what it will be?

I attended the oral arguments. I thought the Court was split 3-3 with Chief Justice Magnuson being the deciding swing vote. He was appointed by the Governor and is a former law partner of his. This leads many to suggest that he will support the governor. I am not so persuaded.
If one can divine anything from oral arguments and questioning, it sounded like the CJ was skeptical of the governor. He asked to tough questions to all attorneys and the direction of the CJ suggested that he found it difficult to accept that delegation of power from the legislature to the governor to use unallotment had sufficient checks on his discretion.

Moreover, the CJ has had to fight the governor hard over cuts to the judiciary and in many ways his stepping down as CJ may have as much to do with exhaustion over this fight than anything else. But given these fights and his resignation, maybe the CJ is free now to defend the courts and issue a decision that will have ramifications for the judiciary. The gov cannot unallot the judicial branch but trimming unallotment may help the courts and public safety none the less.
I give it a 60/40 chance he votes against the governor.

I also think the decision will come this week or next. Any delay will be due to the divided court and the circulating of majority and dissenting opinions and the courting (pardon the pun) of the CJ.

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