Kagan, Thomas and the bench-coolers

It’s about time Obamacare came before the Supreme Court. Frankly, I’ve had it up to the teeth with different courts handing down different rulings; let’s take it to the Supremes and have them decide once and for all. But even this step isn’t going to be an easy one, with various interest groups insisting that liberal Justice Elena Kagan and/or conservative Justice Clarence Thomas recuse themselves, and other interest groups insisting there’s no need.

The basis for Kagan’s recusal would be the fact that she served as Solicitor General in the Obama administration, even though there is little sign that she was involved in putting together the health care law or wrote a judicial opinion on it. The basis for Thomas’s recusal has less to do with him than his wife, Virginia, president of the advocacy group Liberty Central, who has called for Obamacare’s repeal. His ruling, they say, might benefit her organization.

If both Kagan and Thomas recused themselves, it would have less of an ideological impact on the eventual ruling, as the two come from opposing viewpoints and would leave the bench with three liberals, three conservatives and one moderate. That’s is less of a concern than the people calling for their recusals, and the people opposing them. Of those quoted in the link, only Richard Garnett of Notre Dame and Arthur Hellman of the University of Pittsburgh, both of whom see no reason for either recusal, are framed as politically disinterested.

Meanwhile, the cited liberals target Thomas and defend Kagan, and the cited conservatives target Kagan and defend Thomas. Neither group appears to be aware that they each only have half an argument at work in all cases. They speak of the possibility of Kagan’s and Thomas’s conflicts of interest, but offer up little evidence that any such conflicts exist. As Solicitor General, Kagan had little legislative authority; as Virginia’s husband, Thomas had little business authority.

If they insist upon pursuing recusal on either part, it should be up to the congressional Judiciary Committees to back them up. They can take it upon themselves to look into how connected Kagan and Thomas have really been to proponents and opponents of Obamacare. Given the choice between a few partisan advocates and people with actual investigative power, and even the profs, I’d follow the word of the latter.

There’s nothing I dislike more than being interrupted or having my time wasted. If that’s all these calls for recusals amount to, don’t expect the aforementioned advocates to appear in this column again with any amount of flattery.

The day judicial activism became a virtue

If you’ve read my column long enough, you might have deduced that I favor a strong legislative/weak executive model of government. I haven’t yet had occasion to discuss my views on the power of the judiciary. Thanks to every 2012 Republican presidential candidate except former Govs. Jon Huntsman (R-UT) and Mitt Romney (R-MA), I will now. Between endless discussions of job creation, taxes and – good God – abortion, politically independent federal courts appear to have fallen out of favor with the others.

They have espoused some or all of the three following proposals: 1. Eliminate lifetime tenure for federal judges. 2. Cut the budgets of courts they don’t like, in particular the 9th Circuit Court of Appeals in San Francisco, which has a tendency to be presided over by liberal Democratic judges. 3. Allow Congress to ignore Supreme Court rulings on constitutionality of laws. Please bear in mind that one of the candidates pushing for these actions wanted to teach Constitution classes.

Speaking literally, these are as far flung from traditional “judicial conservatism” as you can get. By my definition, that means allowing courts to operate independently of the politics of the day, and have their sole priority be defending the Constitution. This may be a difficult concept for my Canadian readers to grasp, as we rarely remember that we have a constitution of our own, but it is there for a reason: to prevent the government from overstepping its legal boundaries as a result of political will.

None of the above proposals are in that spirit. Eliminating lifetime tenure would run the risk of regular elections for judgeships, reflecting the same partisanship as legislative and executive elections. Selective budget-cutting and legislative override would give too much power to the majority in Congress, and perhaps the White House as well. Anyone who fails to see this as a bad thing also fails to realize that federal courts are not designed to be accountable to the people, but the Constitution, which knows no bias.

I confess that I do subscribe to the “living document” theory, only in that I believe the Constitution should be allowed to be changed if there is sufficient reason. Until that happens, there is no sense in trying to avoid operating within its constraints. Had any Democratic candidate proposed this three years ago, these same Republicans would be rightfully decrying their activist attempts to tamper with a winning system. Let’s try not to be hypocrites, even hypothetically.

All that said, I would like to take this last paragraph to say congratulations to my friend Amanda Hope and Jeffrey Schultz, who became engaged over the weekend. You couldn’t be more deserving of one another.

When do we want it? NOW!

You’re now aware that the individual mandate in President Obama’s health care legislation has been ruled unconstitutional twice. This might be good enough for some, but those two rulings came from district court judges. Normally, these cases go through appeals courts before heading to the Supreme Court, where constitutionality is finalized. Virginia Attorney General Ken Cuccinelli isn’t prepared to wait; he wants the case to bypass the appeals court.

The most recent ruling was handed down by Judge Roger Vinson, a Reagan nominee in Florida’s Northern District. His take on the individual mandate is that the refusal to abide by it does not constitute “interstate commerce,” a circumstance under which the federal government would be free to regulate it. I would have been satisfied if he’d just pointed out that no constitutional amendment puts health insurance within the federal government’s purview. But that’ll do.

As much as I think any attempt to argue otherwise successfully would be an exercise in futility, that is an insufficient reason to ignore past judicial procedure. Cuccinelli is a fairly well-known name in conservative circles and has not shown himself to be particularly friendly to any Obama administration policy. This move indicates a desire for activism unbecoming any judge, as he’d likely agree otherwise.

That’s the first attempt to make the process easier for opponents of the individual mandate. The second comes from Sen. Orrin Hatch (R-UT), who wants Justice Elena Kagan to recuse herself from the inevitable Supreme Court decision. In an interview with Fox News, he said “he is sure” that Kagan was a party to that particular law-making project in her earlier position as the Obama administration’s Solicitor General.

Really? If you’re so sure, Senator, by all means present us with evidence that she did anything outside of the Solicitor General’s job description. Their only policy-making power deals with the judiciary. Their biggest responsibility is to argue on behalf of the White House; the possibility exists that Kagan didn’t agree with the individual mandate at all. There is no indication that she ever crafted an argument on its behalf; she left before she had a chance to do so.

If Kagan were to recuse herself, there would only be eight judges making the final decision, and I suspect Justice Anthony Kennedy would side with the conservatives. The same would be true if there were nine. It’s not worth thinking about. The conservatives have already won the logic.

Campaign finance: The carnage continues

My opinion on campaign finance reform has not changed since last year’s ruling, which struck down limitations on corporate and union political fundraising. Their ability to spend freely allows our candidates to prove their integrity, but no donation should be hidden. Here’s a new question: Did any Supreme Court justices, specifically Clarence Thomas and Antonin Scalia, stand to benefit financially from the ruling, however indirectly? And if they did, should they have been present for the ruling at all?

That’s what liberal advocacy group Common Cause feared, and expressed so in a letter to the Department of Justice. Thomas’s wife Ginni, who has a long history of working for right-wing advocacy groups, was at one point the founder of CEO of one of them, known as Liberty Central; she has since stepped down. Both Thomas and Scalia have been present at invitation-only retreats held by Koch Industries, whose donations have uniformly gone to Republicans and conservative advocates.

Here’s why I’m not convinced. As Supreme Court justices, Thomas and Scalia are both set for the rest of their careers and don’t need any donations. Common Cause President Bob Edgar claims Liberty Central can now raise more for itself, but I fail to see how the ruling ensures that. Before, they could raise as much money as they could get; they just couldn’t spend it as they liked.

Furthermore, Common Cause’s particular attention to Thomas and Scalia is highly dubious. I am not familiar enough with each justice to know about all of their ties to various corporations, unions and other groups; however, most have their pet issues, and the ruling would allow donations from anyone fighting for those issues to be effectual. It would do the same for Common Cause – they should be thrilled.

So I can’t come on board with their contention that Thomas and Scalia should have recused themselves from the ruling. But they do bring up an interesting point: The justices themselves decide if their judgment would be clouded by political bias, monetary influence or anything of the sort. Nobody is around to provide checks and balances to that end, and there are no evident procedural guidelines on how to deal with it.

At a minimum, the Supreme Court ought to have an oversight panel or an ombudsman who can field these sorts of inquiries, with enough power of enforcement to tell the justices to recuse themselves. It would require significant disclosure from all of them – at least as much as we demand of the people who make laws.

He said, she said, they ruled

One day before House Republicans plan to open the first session of the year with a full recitation of the Constitution, a Supreme Court justice appears to be having trouble with it. In an interview, Justice Antonin Scalia declared that the equal protection clause of the 14th Amendment does not prevent women from being discriminated against. Marcia Greenberger, co-president of the National Women’s Law Center, says he’s wrong. Actually, they’re both wrong, without an essential qualifier.

The article helpfully provides the full text of the clause in question:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It seems simple enough, right? Unless you broke one of them, no state in the union has the right to deny you the protection of one of their laws, or those created specifically for United States citizens. The case that clarified the unconstitutionality of legal sex discrimination was 1971′s Reed v. Reed, which overturned an Idaho law that automatically gave administration of a dead person’s estate to a male relative. (Note that one of the lawyers for the female appellant was now-Justice Ruth Bader Ginsburg.)

So how are both Scalia and Greenberger wrong, or at least appearing that way? Scalia made his statement in a way that made it sound like he was referring to all sex discrimination, when in reality the clause only applies to discriminatory laws on state and federal levels. Someone suing their employer for sex discrimination would have to stick to Title VII of the Civil Rights Act, rather than the Constitution.

Greenberger responded by asking “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them.” She’s referring to the exact point that he left out. The court will do something to protect anyone from government-sanctioned discrimination. Even a cursory reading of the equal protection clause makes that very obvious. It’s sad that Scalia would have had to mention this for clarity’s sake.

Maybe the aforementioned House Republicans are on the right track. Everyone in the three branches of government, and probably everyone in the legal profession, should have a copy of the Constitution somewhere in their bookshelf. I’ve got mine.

Disposal Day #25: Court’s out for summer

STORY #1: Kagan’s turn to talk

Things we’ve learned about Supreme Court nominee/Solicitor General Elena Kagan’s opinions during her confirmation hearings: Military veterans aren’t fond of her history with campus recruiters; American Indians wish she was an American Indian so they could have a voice on the court; she’s regarded as intelligent, funny, and a hardcore centrist to the point of frustrating Republicans who obviously want her to admit to biases; she thinks the legislature should be more powerful than the court; she no longer wants to discuss the death penalty; she thinks foreign laws can be helpful but should not be “binding”; and she thinks “society” has a greater role to play than the judiciary in bringing about gender equality.

You know what? I disagree with her decision about the recruiters as well (I’ve written about the Solomon Amendment before; look it up), but all things considered, she really is the best nominee available. I hereby retract an earlier statement that she was not.

STORY #2: But tell that to the Left

It’s hilarious when someone is seen by different sets of people, relatively equal in number, as too liberal and too conservative; that’s the public perception I aspire to create for myself. The left side of that horde isn’t thrilled about Kagan, as her presence will do little to lessen the influence of the unyieldingly conservative Justice Samuel Alito, who wrote one of the court’s final opinions for the session that Americans can carry guns anywhere in the country.

On that note, aren’t conservatives supposed to be the defenders of states’ rights against the onslaught of federal influence? Just pointing that out; I’ve also written about the possibility of such a law before. As for Kagan v. Alito, her position as a centrist may provide a good deal of insight to her eight fellow justices. She gives the impression of one who is shrewd enough to do it well.

STORY #3: The Pfizer case pfroceeds

One of the court’s lesser-known end-of-year rulings is for a lawsuit against Pfizer, who have been accused of conducting nonconsensual drug tests on 200 children in Nigeria, killing 11 of them and permanently injuring “many” others. This suit is being carried out in a U.S. court under the Alien Tort Statute, which I will be writing about in greater detail next week. I will say this for now: If the bringers of the suit are telling the truth, it is deplorable for a pharmaceutical company to resort to such tactics just so they can have another drug to sell.

What makes an activist judge?

This question has been asked by non-insiders many times, and we are fortunate to have a quick and easy definition from this article: It is when “judges have gone well beyond the original meaning of the Constitution to find rights and principles that they say are not really in there.” I will add that said imaginary rights and principles invariably suit one political ideology or another, which the judge had been suspected of wanting to do in the confirmation stage.

During this period for Solicitor General and Supreme Court nominee Elena Kagan, according to the above link, members of the Senate Judiciary Committee will attempt to prove that one side engages in judicial activism more often than the other. In the case of Kagan, who is described here as a centrist (and God bless her for it), both the Democrats and Republicans will likely find very few political triggers. Whatever they do find, though, it is far less likely that one will have significantly more to go on.

Has it ever occurred to them that such behavior can be taken as another form of judicial activism? You don’t have to be a judge to do it; you can select them, too. This practice has been known as “borking”:

To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.

William Safire first used this term to describe Democratic opposition to nominee Robert Bork. (I like to think he also secretly used it to describe Bork’s sex life. Ew.) He is technically right, as their concerns lie more with his beliefs than his legal expertise. The above article estimates that accusations of judicial activism started earlier, in the Earl Warren era. And that was when he was presiding over such offensively political decisions as desegregation and a ban on official school prayer. What an asshole.

This divides judicial activism into two types: court-based, which is done by actual judges, and committee-based, which is done by the people confirming them. With someone like Bork, who is as far from a centrist as they come (in one direction, anyway), committee activism must be proportional to the court kind exhibited by the nominee. With someone like Kagan, that ratio should also be proportional: 1:1. At no time should the share of committee activism outweigh the other for fear of hypocrisy accusations.

Thus, there is one acceptable type of committee activism: the kind that ensures the judge will follow the law to the letter. The majority of the country will thank you.

Sometimes it’s OK to be the party of no

To believe everything the Right says about House Speaker Nancy Pelosi (D-CA) and Co. is to assume they’ve never made a compromise before and are reflexively opposed to anything that could be construed as benefitting the other side. This ought to change your mind.

“House Democratic leaders have brokered a deal to exempt the National Rifle Association from legislation to counteract a controversial Supreme Court decision relaxing campaign finance rules.” And why? Is it out of principled concern for the right of gun owners to be spoken for on Capitol Hill without anyone asking these cumbersome questions, or some such nonsense? No, it’s because the NRA hasn’t been able to shut up about it and these Dems want them off their back for a while. Not an unreasonable thing to want, but where I come from, we’d either hide from them or punch them.

Since no political leader could get away with the latter, and all are probably incapable of doing the former (where would they hide? You can’t spend an entire legislative session in the john), they’ve swallowed their pride and cut this deal, which

grants an exception to any 501(c)(4) group that claims more than 1 million dues-paying members, with a presence in all U.S. states, that has existed for at least 10 years, and derives no more than 15 percent of its funding from corporate or union sources. 

These criteria could only be met by very large and influential groups; I’d think the exemption would be for meeting their opposites. And the original campaign finance ruling was meant to free up corporations and unions to donate and endorse at will, so that 15% number seems low.

An unnamed Democratic aide (I’d be unnamed if I had to justify this) insists the exemption is necessary to pass the bill. Why? Because the NRA, the U.S. Chamber of Commerce, the AFL-CIO, the Sierra Club, and the National Right to Life Committee will take away your checks without it? Because they’ll say negative things about you on the campaign trail? Well, I never. To quote Stephanie Tanner: How rude!

Here’s a vocabulary lesson for every current member of the House: NO. As in, “No, I’m not going to give you this deal.” As in, “No, you don’t deserve it anyway.” As in, “No, I’m not afraid of you.”  These groups are not elected to make laws. Regardless of what they have the right to say and who they have the right to pay, why should anyone bother making them happy for any sake but that of their political career?

Judge not, lest she have been a judge

I was disappointed a few weeks ago that Judge Denny Chin was unlikely to be nominated to the Supreme Court because, at that point, he hadn’t been an appellate judge yet. But if Solicitor General Elena Kagan can get a nomination without having been any kind of judge, maybe there would have been hope for Chin, after all.

What do we know about Kagan’s track record as SG? Her first argument was for Citizens United v. Federal Election Commission, in which she defended the government’s position on campaign financing, as is her professional mandate. She also defended a law, later ruled unconstitutional, that would illegalize depictions of cruelty to animals. During her confirmation hearing, her defense of “battlefield law” conducted outside of actual battlefields had a McCarthyist flavor to it. Those last two make me wary.

Also, as dean of Harvard Law School, Kagan attempted to ban military recruiters from coming to campus, though this ban was lifted for the one-year period that the Solomon Amendment was unconstitutional. At least she waited for legal breathing room before pushing her agenda. You’d think by this time she’d have seen the sense in allowing recruiters on campus, but the article hints that she may have done this in opposition to DADT – worth opposing, but not the fault of recruiters.

Final decision for today: As a White House adviser in the Clinton administration, Kagan supported a ban on late-term abortions with a mother’s-life exception – an idea from then-Sen. Tom Daschle (D-SD). This came at the expense of approval from abortion rights groups at the time, although pro-life groups will surely be pleased to hear of it now.

What of Kagan’s thoughts on today’s major legislative issues: jobs, counterterrorism, trade, the environment? These can often be a better indicator of overarching ideology than decisions on social issues. But as a Supreme Court justice, Kagan would rarely have to comment on anything but social issues, which makes things annoying for those of us who prefer not to write about them.

The biggest issue in this nomination, as has been mentioned, is the fact that Kagan has only had experience on the other side of Supreme Court battles with the government, and that’s not even 18 months’ worth. She is no doubt a prominent legal mind in the U.S., soundly qualifying her for her current position. I can’t say I oppose her nomination outright, but I can’t help but think she isn’t the best option to fill the open seat.

Disposal Day #15: A very judgmental column

STORY #1: Chick stuff

Interesting headline: “Obama seeks court nominee who backs women’s rights.” And then when you read the article, you wonder when women’s rights were reduced to abortion rights. I have trouble with titles much of the time, but at least I keep exaggerations to a minimum.

Anyway, the point of the story is to let you know that President Obama wants Justice John Paul Stevens’s replacement to be as pro-choice as his or her predecessor. I think this desire on Obama’s part is twofold: a) he doesn’t want someone who disagrees with him on this and b) he doesn’t want someone who will indirectly force yet another decision on the subject. That’s something most of us can get behind, I’d say.

STORY #2: A group of no appeal

“. . . the activist group’s federal funding.” (shudder) Two of my least favourite concepts together as one. But that’s not why New York’s federal appeals court was right to keep ACORN’s funding tap switched off. No, it’s because the evidence of mismanagement, however ill-gotten, is too overwhelming for them to deserve any. (You could make the same argument about bank bailouts, but at least ACORN isn’t a huge chunk of a whole economic sector.)

Also, two rulings from an unnamed federal judge make ACORN’s position even worse: he or she called the cut-off unconstitutional. Really? Really? Where in the Constitution does it forbid Congress from refusing to pay operating costs for an ethically suspect company that should have been funding itself the whole time? Not to mention that the company was somehow able to persuade a federal judge to say that?

And for those who want to bring Obama into this because he once hired them to promote voting . . . just shut up already.

STORY #3: I get judicial results!

What a great way to start the morning: Judge Denny Chin, of whom I wrote very flatteringly a couple of weeks ago, was just nominated unanimously to the U.S. Court of Appeals. If 98 senators can agree on him now, just imagine what an easy go he’ll have of getting nominated to the Supreme Court after six years, or however long it takes for an appellate judge to be considering worthy of the “Justice” title.

“There are 23 judicial nominations pending on the Senate calendar.” They won’t get 98!