Jan 20, 2013

Justice Sotomayor Fortunately Made Her Book Signing, and Biden Is No Longer President

Reuters reports that Sotomayor, who was unceremoniously delayed during the Vice President’s swearing in–which ran late–made it to New York on time for her book signing.

Biden’s office scheduled the swearing-in for 8 a.m. EST/1300 GMT to allow Sotomayor, the first Hispanic on the nation’s highest court, enough time to catch a train for a three-hour ride to New York.

On Sunday at 2:30 p.m./1730 GMT, Sotomayor had been due to speak at a Barnes & Noble bookstore in Manhattan and sign copies of her memoir, “My Beloved World.”

Her schedule was squeezed, however, when the private ceremony at the vice president’s Naval Observatory residence began more than 20 minutes late after a Mass for Biden’s friends and family.

I noticed she was getting antsy during a prayer given before-hand. I’m sorry the Justice’s schedule was “squeezed.”

Before Sotomayor departed, Biden made clear he appreciated her sticking around to give him the oath of office.

“I wanted to explain to you what a wonderful honor it was and how much out of her way the justice had to go,” Biden said after the short event, attended by family and about 120 guests.

“She is due in New York. She has to leave right now, so I apologize,” Biden said. “We are going to walk out, you see her car’s waiting so she can catch a train I hope I haven’t caused her to miss.”

I thought he may have been passive aggressive, but who knows.

Despite the time pressure, Sotomayor delivered the vice presidential oath impeccably – unlike Chief Justice John Roberts, who mixed up the words to the shorter presidential oath when he swore in Barack Obama as president in 2009.

Sotomayor made the book signing in New York and read out a chapter to some 200 people about her parents and childhood in the Bronx.

Phew! At least she made it! And 200 people. 200 people showed up to a book signing of a Justice in Manhattan? Doesn’t that seem like a small turnout? I’ve organized events at law school with a bigger turnouts than that.

The list price of the book on B&N is $27.95. Let’s say everyone bought one copy. That would be $5,590. Everyone was allowed to buy up to 4 copies. That would be $22,360. Let’s say her royalty is 15% (which is high). That would be, on the upper end, $3,354.

She said she was “deeply touched” by the people who had waited at the bookstore for hours to see her. “That’s an awesome amount of love to feel.”

Oh, the people who rearrange their schedules to see the Justice. Oh wait.

Supreme Court spokeswoman Kathy Arberg said the book event was a longstanding commitment that Sotomayor could not break.

Yeah, I’m not buying it.

Fortunately, Joe Biden is no longer President as the President as taken his oath, without any errors.

Let’s see which Justices show up tomorrow (the only reason I’ll be watching).

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Jan 20, 2013

After Swearing In, Biden Mentions That Sotomayor Has To Leave Early For New York

The oath starts at around 3:08. After the oath is completed, Biden says:

Justice, these are some of my friends, my family. I want to explain to you what a wonderful honor it was and how much our of her way the Justice had to go. She is due in New York. She has to leave right now. I apologize. We have to walk out. Her car is waiting. She has to catch a train I hope I didn’t cause her to miss . . . Madam Justice, it’s been an honor.

And then Sotomayor exits immediately while Biden walked around shaking hands. I still think this is inappropriate. At least someone is riding Amtrak.

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Jan 20, 2013

The Oath: Part Three

This time Chief Justice Roberts used notes. He got it right! I think POTUS enjoyed saying,  “Thank you, Chief Justice. Thank you so much.” a bit more than usual.


Here is the pool report:

The entire oath ceremony lasted about 1 minute. Chief Justice Roberts led the president in reciting the oath, including the president’s full name “Barack Hussein Obama.”

The president sweared his oath rather than affirmed as expected.

Two two man recited the oath carefully and resolutely without any hint of trouble after the 2009 oath was initially mangled.

At the end of the oath, Roberts said “Congratulations, Mr. President.”

Obama said “Thank you, Chief Justice. Thank you so much.”

The two men seemed warm, but formal, with no hint of animosity.

Obama then said “All right, thank you everybody” and exited.

Only main staffer pooler saw was Press Secretary Jay Carney, who stood behind pooler.

Am also told that John Roberts wife attended, standing next to Obama’s family.

Will have more color and details on the family who attended shortly, but will have to do from IDing people in the photos. The White House at this point is not giving us a list.

And here is the video of Justice Sotomayor swearing in Vice President Biden–early due to the Justice’s book signing. The good stuff begins at 3:08.

Update: According to the Times, Biden referenced the fact that Sotomayor had to skip town for her book signing.

Afterward, Mr. Biden shook the justice’s hand, turned to a large audience of family, friends and close political associates, and expressed his warm thanks. Justice Sotomayor, he noted, was due in New York and had a car waiting to take her to Union Station. “Madame Justice, it’s been an honor, a great honor,” he said.

Update: Photographs from the White House:













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Jan 20, 2013

Title for Carolene Products Artice?

How does this sound for the title of my research into the fascinating aftermath of United States v. Carolene Products?

The Footnote to Footnote Four

What Happened After United States v. Carolene Products?

I hope to finish this article at some point this summer.

Update: Or what about these.

Carolene Products Redux

The Footnote to Footnote Four


Beyond Carolene Products

The Footnote to Footnote Four


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Jan 20, 2013

Frontiero Redux: Military Treats Gay Spouses Differently

Isn’t this Frontiero v. Richardson redux? Spouses on military bases being discriminated against in violation of the equal protection clause based on certain gendered stereotypes?

But less than 24 hours after arriving at the retreat, she and her spouse were told to leave. The military chaplains who organized the program last month said that the couple was making others uncomfortable. They said they had determined that under federal law the program could serve only heterosexual married couples.

Lieutenant Hardy is a lesbian in a same-sex marriage who had hoped that the repeal of “Don’t Ask, Don’t Tell” in 2011 would allow her to fully participate in military life. But she and many other gay and bisexual service members say they continue to encounter a raft of rules and regulations barring them from receiving benefits and privileges routinely accorded to heterosexual service members.

Gay marriage is now legal in nine states and in Washington, D.C. But because same-sex marriages are not recognized under federal law, the spouses of gay service members are barred from receiving medical and dental insurance and surviving spouse benefits and are not allowed to receive treatment in military medical facilities. Spouses are also barred from receiving military identification cards, which provide access to many community activities and services on base, including movie theaters, day care centers, gyms and commissaries.

Gay service members who are married are not permitted to receive discounted housing that is routinely provided to heterosexual married couples.

The disparities have galvanized some married service members and their spouses to fire off angry letters to members of Congress, to blog about their experiences and to demand meetings with their commanders to protest their treatment.

If RBG was on the other side of the bench, this would look like a perfect test case. Of course, Ginsburg argued in Frontiero. Interestingly, she did not receive a single question from the bench.

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Jan 20, 2013

The Oath on a Sunday and President for a Day

The 20th Amendment provides that the President’s Term of Office ends on January 20, 2013 (though it doesn’t really say when it must begin). But what happens when the 20th falls on a Sunday, when an inauguration is impractical (or immoral, take your pick)?

Such is the case this year. As a precaution (overly abundant in light of what happened in 2009), the Chief Justice will administer the oath to the President on Sunday, January 20, prior to the actual inauguration on January 21.

Of course, what would happen if the President, perhaps due to religious convictions, refused to take the oath on a Sunday. Well it happened before, perhaps. Outgoing President James Polk’s term ended on Sunday, March 4, 1849. His successor, Zachary Taylor, refused to be sworn in on a Sunday. Same for incoming VP Millard Filmore.

So who was the President on Sunday, March 4, 1849?

Under the Presidential Succession statute at the time (the Presidential Succession Act of 1792), after the Vice President, the Senatore Pro Tempore was in line. Under this theory, Senator David Atchison of Missouri would have been the President for the Day. However, Atchinson, was the President Pro Temp during the Thirtieth Congress. This position expired when that Congress adjourned on March 4.

Athcinson was in fact sworn in as President Pro Tempore on Monday before either Taylor or Dallas took the oath, so in theory, he was President for a few minutes.

Alas, no one actually considers Atchinson to have been President. Except for his tombstone.


In any event, how did Atchinson spend his day as Commander in Chief? He told the St. Louis Globe-Democrat,”There had been three or four busy nights finishing up the work of the Senate, and I slept most of that Sunday.”

Indeed, because of Justice Sotomayor’s important book signing, Biden will be taking the Oath of the Presidency hours before Obama. Thus, between 8:00 a.m. and noon, Biden will be President.  In fact, there would be a President Joe Biden, and two Vice Presidents Joe Biden. Well played Sotomayor, well Played.

Oh, and while I am on the topic, for those who say the Constitution makes no references to religion, please point them to Article I, Section 7.

If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Yes. The Constitution specifically countenances that a President, who observes the Sabbath on Sunday, should not be penalized for failing to return a bill. Alas, a Jewish President would be a day late and a dollar short. However, the 20th Amendment contains no exception for Sunday, so we are stuck here.

Also, Tim Sandefur raises an interesting bit of trivia:

Pres. Obama will be the only president other than FDR to be sworn in four times. He was sworn in twice because of the mistake last time around, and because Inauguration Day falls on a Sunday this year, he’ll be sworn in on Sunday and then again at the ceremony Monday.

Let’s hope the Chief gets it right. Though, as Adam Liptak reports, When asked about the Chief Justice Administering the oath of office, which he had notoriously flubbed in 2008,  Robert Gibbs,Obama’s press secretary, said “Given health care. I don’t care if he speaks in tongues.”

Update: Will Baude points me to a great article by Jaynie Randall, titled “Sundays Excepted.”

This Essay offers a historical account of the Sunday exception and argues that rather than endorsing religious observance, the Sunday exception reflects two related principles: a deliberation principle and a federalism principle. First, the Framers afforded the President a ten-day period (Sundays excepted) for the consideration of bills; this was a longer period than those contained in the two state constitutions which granted an executive veto in 1787. 16 The ten-day period reflects the Framer’s conception of a deliberative President, one who relied on advisors and collaborated with Congress in wielding his negative. Second, the Sunday exception reflects the fact that each of the thirteen colonies had Sunday laws (commonly called Blue Laws) 17 of various types at the time of the Constitutional Convention. 18 Many of these statutes prohibited labor and travel on Sundays. 19 Thus, in order for the President to deliberate and to call upon the aid of his advisors without violating these laws, the Constitution needed an exception from the brief period allowed for executive deliberation.

Fascinating. Jay Wexler wrote about it on the Odd Clauses blog:

 Of course, some have suggested that this provision supports the view that the Framers thought we were a Christian nation.  According to this argument, the framers wrote the parenthetical into the Constitution as a way of recognizing that Sunday is the true sabbath and day of rest that god wants us to observe every week and so on and so on.  On the other hand, there’s this awesome article from the Alabama Law Review, written by 2006 Yale Law grad and (it would seem) former clerk to Justice Alito, Jaynie Randall (now Jaynie R. Lilley), which argues against the Christian enshrinement thesis and suggests instead that federalist concerns (many states had so-called Blue Laws that prohibited travel and labor on Sundays, and the framers didn’t want to interfere with them) best explain the clause.

Really cool. Will was among those thanked in the dagge rnote (and some guy named Akhil).

You know, I used to cite the fact that the Constitution uses the words “in the year of our lord” as proof of another reference to religion in the Constitution, but that guy named Akhil said that’s wrong.

Yale is totally dumping on the Christian Constitution 🙂

Update 2: Cool, I made the Front Page of Digg.com.

I corrected a few nits pointed out in the comments. My apologies, I wrote this post quite late last night. Also, it seems that there have been several Sunday swearing-ins: Ronald Reagan in 1985, Dwight D. Eisenhower in 1957, and Woodrow Wilson in 1917. Rutherford B. Hayes took the oath on a Saturday in 1877, the public inauguration was on Monday.

Perhaps most interesting is James Monroe. According to the official Senate.gov site:

Monroe’s Inauguration was the first inauguration to fall on a Sunday. Monroe decided to hold the Inaugural ceremony on Monday, March 5, after consulting with Supreme Court justices.

Of course, the Chief Justice at the time was John Marshall.

Update 3 (1/21/12): Thanks to the link from Digg, yesterday was my most trafficked day with over 11,000 visits! Akhil Amar writes in with this update about why Atchison was never actually President.

In addition to the argument and evidence presented in my fn 14, I do not believe there is any evidence Atchison himself ever took the specific presidential oath of office prescribed by Article II.  So any claim that Zach Taylor somehow wasn’t president prior to taking the oath would seem self-defeating for Mr. A and his allies:  Mr. A didn’t take this oath either.

Amar writes in FN 14 of Chapter 9 of his new book, America’s Unwritten Constitution:

As for the Obama oath re-do in 2009, here are the key points to keep in mind: A new president-elect receives his official designation— his commission-equivalent— from Congress as a whole, which bears responsibility for counting electoral votes, resolving any disputes (such as those which arose in 1876– 1877), and, if necessary, choosing among the top electoral-vote-getters (if no candidate has enough electoral votes to prevail, as occurred in 1824– 1825). The president-elect, by dint of the explicit command of the Twentieth Amendment, legally becomes president at the precise stroke of noon on January 20. The clock and not the oath does the work. In this explicit text, we see on display the perfect seamlessness and continuity of the American presidency, which, unlike courts and Congress, never goes out of session— an obvious carryover from the seamlessness of the British system (“ The [old] king is dead; long live the [new] king!”). Textually, it is clear from the words of Article II that the oath is a duty imposed on the person who is already president, not a magic spell that makes him president: “Before he [the president] shall enter on the Execution of his Office, he shall take the following Oath or Affirmation.…” In Britain, it was not uncommon for months or even years to elapse between the start of a monarch’s official reign and the taking of the official Coronation Oath with all its pomp and ceremony. Prior to the ratification of the Twentieth Amendment, which contains the word “noon,” a nice question had arisen about whether the magic moment of presidential transition was midnight or noon (or some other instant). The original text did not specify an hour, but early unwritten practice identified midnight as the magic moment. Hence the storied efforts of John Adams and his staff to sign and seal judicial commissions late into the evening of his final hours on the job in an effort to vest his “midnight judges” with the proper authority.

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