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
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.
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.
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.
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.