The Judiciary

The Anna Nicole Smith Supreme Court case: Uniting liberals and conservatives

By Lanny J. Davis & David B. Rivkin Jr.
 
Say this about Anna Nicole Smith: In a variety of ways, she brought together Americans of all stripes. In an era of political division, she welcomed all in her various endeavors.
 
That is her legal legacy, too. On Tuesday, the U.S. Supreme Court will, for the second time, hear oral argument in a case arising from Ms. Smith’s bankruptcy and her attempt to use that bankruptcy to get around the will of her deceased husband, billionaire oilman J. Howard Marshall II. The case has brought together a wide coalition of liberals, conservatives and people of all stripes concerned about one thing: the constitutional guarantee that lawsuits will be decided by a fully independent and impartial judge.

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Three women on the Supreme Court; one thing in common

As of yesterday, the famous first Monday in October, the U.S. Supreme Court has three female justices; not at the halfway mark yet, but a third is pretty good given that the first woman on the court, retired Justice Sandra Day O’Connor, was also the only woman from 1981 until Ruth Bader Ginsburg joined her in 1993. (O’Connor retired in 2006.)

All three active justices — Ginsburg, 77, Sonia Sotomayor, 56, and the recently confirmed Elena Kagan, 50 — have more in common than their Ivy League educations.

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Judicial emergencies

Last week I commented about the Senate’s failure to deal expeditiously (and in nonpartisan good faith) with President Obama’s judicial nominations. A report by the Alliance for Justice and an op-ed today by Attorney General Holder underscores the problem, concluding that we have a state of judicial emergency in the country as a result of the pace of nominations and confirmations.

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The Obama judiciary

During the 2008 presidential campaign, I wrote repeatedly that the future of the federal judiciary was one key reason to choose between the candidates. As the Obama administration approaches the halfway mark, his political victory has been frustrated in respect to his impact on the judicial branch.

A recent report by the Alliance for Justice on “The State of the Judiciary” concluded that judicial appointments have been “fraught with dramatic and unprecedented delays” as a result of “a deliberate pattern of obstruction,” to a level unprecedented since 1970. There are about as many vacancies now as when President Obama took office. Even nominations that were approved by the Judiciary Committee have been held up for votes on the floor.

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Kagan vote delayed

Senate Republican leader Mitch McConnell of Kentucky questioned Supreme Court nominee Elena Kagan on a series of notes she had written while serving as a political adviser in the Clinton administration.

On one page, Kagan scribbled that a proposed ban on soft-money donations would “affects Repubs, not Dems!” McConnell rightly seized on these documents to question whether “Ms. Kagan’s work in the Clinton White House reveals a woman who was committed to advancing a political agenda — a woman who was less concerned about objectively analyzing the law than the ways in which the law could be used to advance a political goal.”

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SCOTUS nominations shouldn’t be pro forma exercise

U.S. Solicitor General and Supreme Court nominee Elena Kagan yesterday entered her second and perhaps final day of intense scrutiny by the Senate Judiciary Committee. After over nine hours of questioning, we still lack critical insights into how Justice Kagan would approach some of society’s most pressing questions before the court.

We do know, however, that Kagan is a Democrat, and proud of it. Under an earlier set of questions, she seemed to respond to one senator with the proper White House talking point, saying, “One thing I know is that my politics would be, must be, have to be separate from my judging.” Yet barely a few hours later, Kagan described herself as “generally progressive” and went further to say, “I've been a Democrat all my life. I've worked for two Democratic presidents, and that's what my political views are.”

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The right to anonymity

The United States Supreme Court continues to debate the dimensions and applications of the freedom of anonymity. In mid-20th century cases dealing with civil rights and loyalty questions, the high court ruled that the First Amendment’s freedom of association includes a freedom of anonymity. Membership lists thus were protected from scrutiny by antagonistic political enemies.

In the new century, the Supreme Court has dealt variously with similar issues. In a Colorado case, it struck down a requirement for ID tags for legislative petitioners. Later, in an Ohio case dealing with voter ID cards, it upheld a state law despite claims that it violated voters’ rights to anonymity. Last week, a Washington state case dealt with a legislative referendum challenging the state’s same-sex marriage law, Doe v. Reed. Signatories there claimed that disclosing their names would lead to harassment, intimidation and reprisals; thus, they claimed, disclosure of their identities violated their First Amendment rights.

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Robert Byrd’s supreme irony

If, in fact, we do get to look back after death, Robert Byrd would probably be proud that his came on a day when the United States Senate was once again playing one of its most primal roles.

He had, after all, spent more than half a lifetime jealously defending the rules, peculiarities and turf of the Senate and protecting against almost any smart-alecky attempt at reform.

He succumbed in the predawn hours of a morning when the Senate was scheduled to begin exercising its constitutional mandate to give "Advice and Consent.” Using the current media construct, this is day one of the hearings leading up to a vote on whether to confirm Elena Kagan, the president's nominee to join the Supreme Court.

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Obama's Supreme legacy

I’m loving the drama that is unfolding around President Barack Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court.

Conservatives are, true to form, bungling the narrative they should be rightfully pushing — an unqualified liberal just chomping at the bit to legislate from the bench. Meanwhile, Miss Kagan’s record on anything that might reveal her jurisprudence is so sparse that liberals are beginning to get a little skittish on just how she may rule on various issues.

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No chumps from the ‘heartland’ on the Supreme Court, please

If Elena Kagan is confirmed, says Christopher Edley Jr., who spent 23 years teaching law at Harvard, we will have an entire Supreme Court educated at Harvard and Yale law schools. This is good, he writes in an op-ed in The Washington Post, because our legal culture “values uncommon smarts.” The Supreme Court is not just all theater and dressing up. “At the Supreme Court level, it's all about finding oracles for Olympus,” he writes. You won’t find chumps at Harvard or Yale. These are schools for "the elite.” Better than some other law schools that would satisfy the “heartland.” But I’m not so sure about Yale. Cordelia, the archetypal pretty girl on "Buffy the Vampire Slayer," says that Yale is only a dumping ground for people who can’t get into Harvard.

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