The Judiciary

On being 80

I’ve recently passed my 80th birthday. I think about it as I read the debates about whether Supreme Court Justice Ruth Bader Ginsburg should retire.


Republicans' Texas and national judicial shutdowns must end

Voters who despised the government shutdown and threats of driving America into national default, caused by recent extremism of Republicans in Washington, will equally despise the judicial shutdown caused by Republicans in Texas and the U.S. Senate.


Harry Reid's racial choreography

After the "not guilty" verdict for George Zimmerman was announced — a verdict predicted by most legal experts based on evidence, lack of evidence, weakness of burden of proof and testimony — the predictable politicization and preening for the cameras began.

The professional race-baiters did their usual thing, as did those who are so easily baited. The news outlets breathlessly reported on the reactions from the former and the latter, shamelessly playing the role of the former, all the while using the situation to fan the flames for ratings. But we expect that from them, sadly.

What is troubling on a very core level, however, is the choreography by the Obama administration and congressional Democrats in an ever more determined and sophisticated effort to exploit and politicize a tragic situation for partisan advantage.


Cameras in the courts

Perennially, usually around cause celebre trials, we debate the question of whether cameras should be in courts and if their presence perverts justice. Two news items present the unwise and the wise arguments on this subject.


Judges, filibusters and obstruction

Nothing is more important in America than the rule of law. Nothing is more important for the rule of law and American justice than filling the inexcusably large number of judicial vacancies. Nothing is more important for governance in America than the president and the Senate working to end the obstruction, gridlock and abuse of filibusters that is destroying the credibility and efficacy of the United States Senate.


Shame on Scalia

Don't miss the excellent story in The Hill by Justin Sink about Supreme Court Justice Antonin Scalia comparing homosexuality to murder, by equating views about laws against homosexuality to views about laws against murder. Asked about this and fairly quoted in The Hill's story, Scalia gave a mini-seminar about the style of argument called "reduction to the absurd." If Scalia wants to insult the intelligence of law students with this nonsense, that is the problem of his suffering students. When he says these things as a Supreme Court justice, it becomes the problem of the American people. Justice Scalia should now recuse himself from Supreme Court cases involving any issues relating to gay rights.


It’s the courts, stupid

If the polls don’t make Democrats anxious, think about this. The U.S. Supreme Court, the Roberts court, which liberals and progressives deplore, usually rules in a 5-4 margin in contentious cases, and not always. But Justice Ginsburg is 79 and frail; Justices Scalia and Kennedy are 76; and Breyer 74. There is a good chance (but no certainty) the next president will have to replace one or more of them. If the majority switches in these high-profile, high-stakes cases to 5-4 the other way, it can make a huge difference for decades, on the vital national issues that come before the court for a final word.


Chief Justice Roberts's Machiavellian supreme play

By labeling the ACA “penalty” a tax, Roberts has clarified the issue: ACA is a huge new burden on the middle class and it is rooted in the most coercive form of federal governmental power — the power to tax the people directly.

If the American people want federalized healthcare at the price of a huge new direct tax, then we conservatives cannot save them. Roberts has given us the very best ground on which to fight this battle (and he has located the battle in the appropriate place, the political realm — would that the jurists in Roe v. Wade had the same wisdom).


Roberts saves healthcare — and the court

We know the Supreme Court is powerful. On Dec. 12, 2000, they decided that George W. Bush would be the next president of the United States. On June 28, 2012, they decided that Barack Obama would be reelected president of the United States.

There’s no escaping the political implications of the court’s long-awaited decision on healthcare. Even Mitt Romney seems to agree. Two days before the court’s ruling, he told supporters: “As you know, the Supreme Court is going to be dealing with whether or not ObamaCare is constitutional. If it is not — if ObamaCare is not deemed constitutional — then the first three and a half years of this president’s term would have been wasted on something that has not helped the American people.”


Louis H. Pollak: 1922-2012

If there is any better man, lawyer, appellate advocate, federal judge, law school educator and dean than Louis H. Pollak, who died last week, I don’t know him, and might never find him. Acclaimed nationally as civil-rights advocate, law professor and judge, Lou made being a lawyer a class act.

I met Pollak as a graduate student at Yale Law School in 1956. When I submitted my doctorate thesis to three Yale law professors for approval, he was one (chosen because of his civil rights reputation; if he liked it, it was good), along with Fred Rodell (the best writer about legal subjects then, and one of my favorite professors); and Richard Donnelly, who taught criminal law, my favorite subject and with whom I'd written a law review article. Candidates requested three professors to be readers for the faculty, then never discussed the subject later, as that would have been unseemly. I learned they had approved my thesis and granted me my Juris Doctorate after I had left Yale Law School and was a prosecutor trying a case in federal court in Kentucky. It was published by Columbia University Press.