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If what Republican senators wanted was a hot-tempered target to go after in Supreme Court nominee Sonia Sotomayorthis week, what they’ve got so far is a cool customer. Low-key. Deliberate. And devoted, in her statements, to the law.

Is a judge’s heart important, asked Senator John Kyl?
“No, sir,” said Sotomayor. “It’s not the heart… It’s the law.”

And empathy? Feelings?
“We apply law to facts,” she said. “We don’t apply feelings to facts.”

And the hearings go on.

This hour, On Point: pro and con on US Supreme Court nominee, Sonia Sotomayor.

You can join the conversation. Tell us what you think — here on this page, on Twitter, and on Facebook.

-Tom Ashbrook

Guests:

Dahlia Lithwick, senior editor and a legal affairs commentator at Slate.com. Her recent column about the Sotomayor hearings is “Honesty at Last!”

Stephen Carter, Professor of Law at Yale and best-selling novelist. He clerked for Supreme Court Justice Thurgood Marshall. His latest novel, “Jericho’s Fall,” has just been published. He is also author of non-fiction books such as “The Confirmation Mess: Cleaning up the Federal Appointments Process” and “The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion.”

Wendy Long, legal counsel to the Judicial Confirmation Network, a conservative organization opposed to the Sotomayor nomination. Formerly a litigation partner in the law firm Kirkland & Ellis LLP, Long was a law clerk to U.S. Supreme Court Justice Clarence Thomas and editor of the Northwestern University Law Review, where she graduated law cum laude.

Frank Ricci, left, lead plaintiff in the New Haven firefighters' reverse discrimination case, speaks to the media outside of Federal Court in New Haven, Conn., on Monday, June 29, 2009. The Supreme Court ruled in a 5-4 decision that the white firefighters were unfairly denied promotions because of their race. (AP)

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Yesterday the Supreme Court handed down the most anticipated decision of its term, finding that white firefighters denied promotion in New Haven, Connecticut, were the victims of racial discrimination.

In doing so, the justices overturned a ruling joined by Federal appeals court judge, and high court nominee, Sonia Sotomayor. That alone grabbed a lot of headlines.

But more profound are the questions raised about civil rights law and the future of affirmative action in the United States.

This hour, On Point: the Ricci case, civil rights law, and the future of affirmative action.

You can join the conversation. Tell us what you think — here on this page, on Twitter, and on Facebook.

-Jane Clayson, guest host

Guests:

Joining us from Washington is Jess Bravin, Supreme Court correspondent for The Wall Street Journal.

From Chicago we’re joined by Richard Epstein, professor of law at The University of Chicago and author of “Skepticism and Freedom: A Modern Case for Classic Liberalism” and “Principles for a Free Society: Reconciling Individual Liberty with the Common Good.”

And from San Francisco we’re joined by Richard Thompson Ford, professor of law at Stanford University and author of the books “The Race Card: How Bluffing About Bias Makes Race Relations Worse” and “Racial Culture: A Critique.”

President Obama is expected to nominate a woman to replace retiring Justice David Souter. Justice Ruth Bader Ginsburg is currently the sole woman on the Supreme Court. (AP Photo)

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Any day now, Barack Obama will be announcing his choice for nominee to succeed David Souter on the U.S. Supreme Court. Speculation is high that it will be a woman.

Ruth Bader Ginsburg has said she’s “lonely” on the court. And at one level, it seems obvious that the court should have another woman. The world is half female.

But does a woman bring a special kind of jurisprudence to the bench? Is it the “quality of empathy” Obama says he wants? And what kind of woman? Hispanic? Straight? Gay? Elected?

This hour, On Point: Women, justice, and the Supreme Court.

You can join the conversation. Tell us what you think — here on this page, on Twitter, and on Facebook.

-Tom Ashbrook

Guests:

Joining us from Charlottesville, Va., is Dahlia Lithwick, senior editor and legal correspondent for Slate. She recently co-wrote  a piece with Hanna Rosin called “An Unnatural Woman,” looking at potential female nominees to the Supreme Court and issues of sexuality. She’s also written recently about the controversial idea of a female jurisprudence and the concept of judicial empathy.

From Washington, we’re joined by Hanna Rosin, a contributing editor at The Atlantic and a writer for Slate. She’s also a founding editor of “Double X,” a new women-focused Web magazine launching today.

And from Palo Alto, Calif., we’re joined by Deborah Rhode, professor at Stanford Law School. She’s a pioneering scholar on the field of gender and the law. She’s director of Stanford’s Center on the Legal Profession. Her latest book is “Women and Leadership: The State of Play and Strategies of Change.”

"Take a Stand for Your Freedom" (ACLU advertisement. Click for larger image at aclu.org.)

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The American Civil Liberties Union, the ACLU, has long been a house divider in American politics: a love-it-or-hate-it crusader for the defense of liberties even when unpopular.

Since 9/11 and the “war on terror” response, ACLU membership and contributions have soared as more Americans feared for their liberties. It should be the ACLU’s finest hour. Some say it has been.

Wendy Kaminer says no. The former ACLU board member says the ACLU itself has lost its way, compromised its mission. She’s out with a scathing critique, from the inside.

This hour, On Point: an inside charge of an ACLU gone wrong.

You can join the conversation. Do you see the ACLU as a beacon or a bane? Have you joined since 9-11? Have you heard, seen, been part of the infighting? Tell us what you think — here on this page, on Twitter, and on Facebook.

-Tom Ashbrook

Guests:

From New York we’re joined by David France, contributing editor to New York Magazine. He covered the ACLU’s post-9/11 infighting for the magazine in “Freedom to Backstab.”

Joining us in our studio is Wendy Kaminer is a writer, lawyer, and social critic.  She served on the national ACLU board from 1999 to 2006 and became disillusioned with the leadership and direction of the organization. Her new book is “Worst Instincts: Cowardice, Conformity, and the ACLU.” On Point news analyst Jack Beatty calls it “devastating … a study … of how good organizations, blinded by the righteousness of their mission, do bad things.”

From Omaha, Nebraska, we’re joined by Tim Butz. He was executive director of the ACLU of Nebraska from 2000 to 2006. He served on the Executive Directors Council, a liaison between the ACLU national office and the state affiliates. He is still a member and donor to the ACLU.

Photo by cubicgarden (Flickr)

Cyber-bullying is too mild a term for some of what goes on in the rougher corners of the Internet.

When anonymous online attackers went after two young women at Yale Law School, it had the feel of a gang beating. Maybe worse. Brutal. Obscene. Relentless. And done, it seemed, for fun.

Now the women have pushed back in the courts. Defendants say it’s not their attacks but free speech that’s really under fire. The case may change what you can and cannot say online.

This hour, On Point: Mob psychology, harassment on the web, and how one case may change the rules.

You can join the conversation. Have you seen it? Bullying? Harassment? A mob attack online? Can it, does it, go too far? What about free speech?

-Tom Ashbrook

Guests:

David Margolick, contributing editor at Portfolio magazine. His article “Slimed Online,” about the case of the two Yale law students, appears in the March issue.

Danielle Citron, professor of law at the University of Maryland. She has written extensively on cyber harassment and the law.  

Anthony Ciolli, University of Pennsylviania Law School graduate and former administrator of the online forum AutoAdmit.

Marc Randazza, attorneywho represented Anthony Ciolli.  He has commented on the case on his blog.

A forensic scientist trainee looks over bullet casings at a forensics lab in Richmond, Va., in July 2008. (AP)

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If your image of crime labs comes from shows like “CSI,” get ready for a shocker: a landmark report released yesterday by the National Academy of Sciences says we’ve got a problem when it comes to forensic science.

From fingerprints and ballistics to blood splatter and bite marks, America’s crime labs just aren’t cutting it. The report calls for a major overhaul — and calls into question decades of cases based on forensic evidence.

How we move forward will have a far-reaching impact on crime labs, courts — and American criminal justice.

This hour, On Point: Crime labs, and the future of forensics.

You can join the conversation. Have you ever wondered about the validity of forensic evidence? How it’s used in court? Do you have first-hand experience?

-Jane Clayson, guest host

Tom Ashbrook is on vacation this week.

Guests:

Harry Edwards, co-chair of the National Academy of Sciences panel that put out the new report, “Strengthening Forensic Science in the United States: A Path Forward.” He’s a senior Circuit Judge and Chief Judge Emeritus for the U.S. Court of Appeals in the District of Columbia Circuit.

James Doyle, director of the Center for Modern Forensic Practice at John Jay College of Criminal Justice in New York. A veteran litigator, he’s the author of “True Witness: Cops, Courts, Science, and the Battle against Misidentification.”

Barry Fisher, director of the Los Angeles County Crime Laboratory. In 1969 he joined the Los Angeles County Sheriff’s Department crime laboratory and has worked in most of the sections of the laboratory. He’s past president of the American Academy of Forensic Science and the American Academy of Crime Laboratory Directors.

Barry Scheck, co-founder and co-director of The Innocence Project, an organization dedicated to exonerating wrongfully convicted people. He served on O.J. Simpson’s defense team, winning an acquittal in 1995 at Simpson’s murder trial.

More links:

Today’s Los Angeles Times runs a big piece on the new NAS report, along with an opinion piece by UCLA Law School’s Jennifer L. Mnookin.

President Bush speaks at the White House prior to signing the Military Commissions Act of 2006. From left are Attorney General Alberto Gonzales, the president, Defense Secretary Donald H. Rumsfeld, and Vice President Dick Cheney. (AP)

Former congressman and White House chief of staff Leon Panetta has been tapped by Barack Obama to be the next head of the CIA.

But a loud chorus is still looking back at what happened in the Bush administration — and charging that torture, eavesdropping, and more, demand an accounting: legal accountability, criminal charges that could go as high as Vice President Cheney — and maybe the president.

Critics call it a smear and a partisan crusade. Supporters call it a vital defense of the constitution.

It is a loaded subject. This hour, On Point: We listen to the case for prosecution — and the case against it.

You can join the conversation. Where are you on this? Was it all just part of the nasty reality of unorthodox war? Or were actual crimes committed in your name? Do you want to see Rumsfeld, Cheney, Feith, Addington, maybe even George Bush, sitting one day in a courtroom? In the dock? Or would that just tear the country apart?

-Tom Ashbrook

Guests:

Joining us from New York is Scott Horton, a contributing editor at Harper’s Magazine and a distinguished visiting professor at Hofstra Law School. His article “Justice after Bush: Prosecuting an Outlaw Administration” appeared in the December issue of Harper’s.

Also from New York, we’re joined by Andrew McCarthy, a former federal prosecutor and a regular contributor to National Review. His article on the question of Bush administration prosecutions, “The Myth of Bush’s Torture Regime,” appeared in December. As Assistant United States Attorney for the Southern District of New York, he led the prosecution against Sheik Omar Abdel Rahman in the 1993 World Trade Center bombing case.

And from Washington, we’re joined by Charles Homans, an editor at The Washington Monthly. His article on this subject, “Last Secrets of the Bush Administration: How to find out what we still don’t know,” appeared in the November-December issue.

An investigator enters the ACORN office in Las Vegas, Oct. 7, 2008. (AP)

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John McCain put the pedal to the metal on election fraud rhetoric in the last presidential debate, charging that liberal get-out-the-vote group ACORN “may be perpetrating one of the greatest frauds in voter history.”

Sounds bad. One of my guests today, Robert F. Kennedy Jr., says the bad news is mainly on the other side of the ledger — that GOP operatives are dead set on vote suppression and pulling every string to deny millions the ballot.

How bad is it, really? We’ll ask. The integrity of the vote itself is a deeply serious issue, and a politcal football.

Up next On Point: The American vote, and the challenges it’s facing next Tuesday, November 4th.

You can join the conversation. Are you confident, confident enough, with America’s registration and voting process?

-Tom Ashbrook

Guests:

From Washington, we’re joined by John Fund, a political journalist and a columnist for The Wall Street Journal. He’s the author of “Stealing Elections: How Voter Fraud Threatens our Democracy,” originally published in 2004 and revised and updated for 2008. His recent New York Post op-ed warned of the potential for voter fraud.

With us from White Plains, N.Y., is Robert F. Kennedy Jr. A lawyer and activist, he’s the chief prosecuting attorney for Riverkeeper, a New York environmental organization, and co-host of Ring of Fire on Air America Radio. He is co-author of the article “Block the Vote” in the October 30 issue of Rolling Stone.

And joining us from New York is Nathaniel Persily, a professor of law at Columbia University. He is founder and director of Columbia Law School’s Center on Law and Politics.

Security guards stand on the steps of the Supreme Court. (AP)

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While the U.S. financial crisis marches on, the country marches toward November 4th and a presidential election with consequences way beyond a buck — even seven hundred billion bucks.

High on the list: the make-up of the U.S. Supreme Court. The next President of the United States might name three new justices to the high court. Depending who does the naming, that could transform assumptions about life and death in this country.

After four years, or eight — or maybe a President Palin — the path of a McCain court could look very different from an Obama court’s. On abortion. On habeas corpus. On presidential powers. Clean air and water. Food and drug safety. Church and state. This could be a different country.

This hour, On Point: Imagining what a “McCain court” or “Obama court” would mean for America.

You can join the conversation. Who do you want putting new judges on that bench? The highest bench? And why? Share your thoughts.

-Tom Ashbrook

Guests:

Jan Crawford Greenburg, legal affairs correspondent for ABC News and author of “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.”

Laurence Tribe, professor at Harvard Law School. His new book is “The Invisible Constitution.” He has argued before the Supreme Court 35 times.

Richard Garnett, professor at the University of Notre Dame Law School. He contributes to the “Bench Memos” blog at National Review Online. He clerked for Chief Justice William Rehnquist.

For much of the country, it felt like a bolt from the blue. Last week, giant California gave a green light to gay marriage.

California’s high court, in a 4-3 ruling, said civil union rights were not enough. Gay Californians — and those from anywhere else who barrel west to the Golden State — are entitled, said the court, to marriage.

San Francisco celebrated. Even Arnold Schwarzenegger signed on. There are implications for the whole country. Legally. Politically. But the battle’s not over.

This hour, On Point: California’s big move on gay marriage.

-Tom Ashbrook

Guests:

Crystal Carreon, courts reporter for the Sacramento Bee.

Geoff Kors, executive director of Equality California, a gay rights advocacy group.

Brian Brown, executive director for the California chapter of the National Organization for Marriage, which opposes the state’s high court ruling.

Dahlia Lithwick, senior editor and legal analyst at Slate magazine.

Douglas Kmiec, professor of constitutional law at Pepperdine University in Malibu, California. He served as head of the Office of Legal Counsel for Presidents Ronald Reagan and George H.W. Bush.

The Irrawaddy delta in Myanmar is underwater, thousands dead, and environmentalists say it’s global warming. Monster tornadoes are plaguing the U.S. — last weekend in Missouri, Oklahoma and Georgia.

Meanwhile, far away, on the west coast of Alaska, the tiny fishing village of Kivalina is falling into the sea. And its attorneys are suing 24 oil, coal and electric companies, saying their emissions are responsible.

Sound crazy? These same attorneys fought over Big Tobacco, and Big Tobacco lost.

This hour, On Point: the courts and climate change.

-Tom Ashbrook

Guests:

Juliet Eilperin, environment and national politics reporter for The Washington Post.

Steve Susman, co-lead counsel in the case of “Native Village of Kivalina and City of Kivalina v. Exxon Mobil,” founding partner at the law firm Susman Godfrey, and former lawyer for Philip Morris.

Steve Berman, co-lead counsel in “Native Village of Kivalina and City of Kivalina v. Exxon Mobil”, managing partner at Hagens, Berman, Sobol & Shapiro, and former anti-tobacco lawyer.

Enoch Adams Jr., chairman of the Kivalina Relocation Planning Committee.

Jeffrey R. Holmstead, former assistant administrator for air and radiation at the United States Environmental Protection Agency and head of the environmental strategies group at the law firm of Bracewell and Giuliani.

The heat on New York governor Eliot Spitzer is now tremendous. By the end of the day, he may have resigned. He may be hanging on.

But the supernova of media attention to Spitzer’s alleged use of a high-priced prostitution ring — Emperors Club, Client No. 9, “Kristen,” five thousand dollars per tryst — has lit up the terrain of America’s sex industry, and its posh upper reaches, like no story in years.

This hour, On Point: we’re looking at prostitution and the law in America. From back streets to pricey escort services, what goes on, who gets prosecuted — and the fate of Eliot Spitzer.

-Tom Ashbrook

Guests:

Joel Stashenko, Albany bureau chief for the New York Law Journal.

Melissa Farley, director of Prostitution Research and Education, a San Francisco-based nonprofit, and author of “Prostitution and Trafficking in Nevada.”

Eugene O’Donnell, professor of law and police studies at John Jay College of Criminal Justice and a former New York Police Department detective.

Juhu Thukral, director of the Sex Workers Project at the Urban Justice Center in New York City.

There is no death row or execution chamber at Guantanamo, but the Army is working on it. On Monday, the Pentagon made public murder and conspiracy charges against six Guantanamo inmates accused in the attacks of 9/11, and announced it will seek the death penalty before a military tribunal.

The military’s own JAG legal community and observers around the world are deeply divided over whether such a trial can be fair. Torture, justice, six lives, and America’s reputation are at issue.

This hour, On Point: the Guantanamo Six head to trial, and the whole world is watching.

-Tom Ashbrook

Guests:

Scott Silliman, professor of law at Duke University, where he is executive director of the Center on Law, Ethics and National Security. He served for 25 years in the Air Force, where he managed 715 active duty and reserve lawyers.

John Hutson, dean of Franklin Pierce Law Center and former Judge Advocate General of the US Navy.

John Bickers, professor at the Chase College of Law, Northern Kentucky University. He served as an Army Judge Advocate for 15 years.

Michael Isikoff, investigative reporter for Newsweek magazine.

Freedom of speech is enshrined right there in the American Bill of Rights, but Americans took a long time to really embrace it. By 1798, President John Adams was already blowing by the First Amendment to go after supporters of Thomas Jefferson.

More than a century later, in World War I, Americans were sentenced to 20 years in prison for throwing anti-war leaflets off a rooftop in New York.

Now, post-9/11, the great commentator and longtime New York Times columnist Anthony Lewis is looking at the health and history of free speech today.

This hour, On Point: Anthony Lewis and freedom of speech.

-Tom Ashbrook

Guest:

Anthony Lewis, two-time winner of the Pulitzer Prize and former columnist for The New York Times, where he worked from 1948 to 2001. His new book is “Freedom for the Thought That We Hate: A Biography of the First Amendment.”

Michael Mukasey’s confirmation as Attorney General looked like a sure thing. Now, with the legal definition of torture in the balance, Democrats aren’t so sure.

-Tom Ashbrook

Guests:

Charlie Savage, reporter for The Boston Globe, is author of “Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.”

John McGinnis, professor at Northwestern University School of Law and former Deputy Assistant Attorney General under Presidents Reagan and George H.W. Bush.

Laurence Tribe, professor at Harvard Law School.

It was a travesty: crude, privileged white-boy lacrosse players at Duke, raping a black woman for kicks. And then it was a different travesty: innocent young men railroaded by a politically-ambitious prosecutor, and a public too willing to believe.

Race and class stereotypes turned on their heads and unleashed with a vengeance. A media machine and academic critics ready to send innocents to prison for years. That case is not closed.

This hour, On Point: the lessons of the Duke no-rape story from the author of a scathing new book, the faculty, and the coach who was sent packing.

-Tom Ashbrook

Guests:

Stuart Taylor, co-author of “Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case” and columnist for National Journal.

Bob Ashley, editor of The Herald Sun in Durham, North Carolina.

James Coleman, law professor at Duke University and chair of a faculty committee on the lacrosse team incident.

Mike Pressler, former Duke University lacrosse coach, co-author of “It’s Not About the Truth: The Untold Story of the Duke Lacrosse Rape Case and the Lives It Shattered,” and now coach at Bryant University.

With its 800,000 citizens, South Dakota may be one of the smallest states in the nation, but it made a big noise last week.

The South Dakota legislature has passed a bill that would virtually ban abortion. Straight out. No matter how old or young the woman. No matter if the pregnancy was the result of rape. No matter if the pregnancy was the result of incest. No matter if giving birth would damage the health of the mother. No abortions, period — except to save a woman’s life.

South Dakota governor Michael Rounds says he’s inclined to sign the bill. A direct challenge to Roe v Wade, it would go directly to the courts.

Hear about South Dakota’s big noise, and the new shape of the strategic battlefield around abortion.

-Tom Ashbrook

Guests:

Roger Hunt, State Representative South Dakota, sponsored abortion bill.

Kate Looby, director of Planned Parenthood in South Dakota.

Daniel McConchie, vice president of Americans United for Life.

Frances Kissling, president of Catholics for Free Choice.

Kate Michelman, former president of NARAL and author of “With Liberty and Justice for All: A Life Spent Protecting the Right to Choose.”