The Judiciary

Convincing the Supreme Court

Adam Liptak’s article in Sunday’s New York Times, “Are Oral Arguments Worth Arguing About?” reminded me of an interesting and revealing experience I had years ago when I argued a case before the Supreme Court. Liptak’s point was that “it is the rare oral argument that wins or loses a case.” Results derive from the merits of the case, not the skill of the advocates, one expert told Liptak; indeed, the briefs play a greater role.


Guardians of the Constitution

If the Supreme Court doesn't reject Affordable Healthcare we are lost as a nation. Not rejecting it would indicate that the highest judicial branch in our land has been overtaken by political ideology that actively seeks to shred the Constitution as it clamors to force bigger and bigger government upon Americans.


Mr. Taranto goes to Washington; women, Hispanics reject party, partisanship, personal attacks

One of the burdens a columnist must bear is being insulted by those who disapprove, as one James Taranto disapproved of my recent column “Supreme Court on Trial.” Taranto's angry comments about my column ran in The Wall Street Journal’s online edition and were limited to calling my column staggeringly dumb, an attempt by me to make President Obama (whom Taranto presumably thinks is dumb as well) look smart by comparison, and so forth. Taranto does not answer any of the points I made, so I must infer, and note that his invective without reasoning illustrates why armies of women and Hispanics are supporting President Obama and Democrats.

Republicans, rightists and some who make the Journal opinion page their home have an attitude of contempt, derision and anger toward those with differing views. Stay tuned for an upcoming column that elaborates about this "Republican disease" that leads them to demonize, and at times hate, a succession of Democratic presidents and leaders whom in their contempt for democratic values they do not accept as legitimate.


Order in the court. Here comes the judge

After an unprecedented attack by President Obama on the U.S. Supreme Court, a federal judge asked the Justice Department to give a written explanation of its opinion of what the president was conveying to the justices as they decide the fate of ObamaCare. It appears that the judicial system is defending itself as a co-equal branch of the United States government.

This is absolutely appropriate since the president seems to feel that unelected judges have no right to interfere with the legislative and executive process. At least when they are his executive and legislative processes. This is but one of the many radical changes that the president wants to bring about to our nation. He basically wants the judicial system to be a rubber stamp for his ideological agenda. It will certainly be educational as well as fascinating to see who wins this mammoth struggle, and the implications will be significant for the future identity of our nation.


From Mitt Romney to Ron Paul: The vast wasteland of American conservatism

In my most recent column, “Supreme Court scandals,” I suggested that America endures a partisan Republican and ideologically extreme Supreme Court majority that has run amok, embodies the hypocrisy of a delegitimized conservative movement and has become an enabling force for the most corrupted of the 1 percent. From the shamelessly unprincipled Mitt Romney to the shameful and unprincipled pandering to Romney by Ron Paul, who like Romney is now a man without a conscience, we are witnessing the end of conservatism as a credible intellectual force in American public life.


Resist Obama/Reid's nomination power play

Senate Majority Leader Harry Reid’s (D-Nev.) nomination power play under the guise of a created emergency on the federal bench is both absurd and dangerous.
The truth is that Reid is setting up a constitutional crisis over the Easter congressional district work period allowing President Obama to “recess”-appoint a bevy of judges and others without the advice and consent of the Senate.
The Constitution does not require that the Senate approve the president’s choices for the judiciary, and in fact, the Senate is supposed to be anything but a rubber stamp.  These permanent appointments to the federal bench are supposed to be thoroughly vetted, and the Senate has a responsibility to only approve those who meet the highest standards.


More on Supreme Court ethics

Last week I wrote about the ironic comments of Chief Justice John Roberts that Supreme Court justices be left to decide whether they have a conflict of interest to disqualify their sitting in judgment in a particular case.

The New York Times joined the current debate over Supreme Court recusal practices, editorializing that the court should subject itself to the same ethical rules already applicable to all other federal judges and for the justices to increase the transparency of their recusal decisions. The justices’ personal vigilance and judgment may well be correct; but if it is so, why not let the public see it?


Obama’s extraconstitutional NLRB appointments

Washington, D.C., political insiders, wonks and talk radio are all atwitter about the decision by President Obama to blow up the Senate advise-and-consent process by making appointments of three individuals to the National Labor Relations Board and one to run the Consumer Financial Protection Bureau.

The three NLRB appointees will allow the board to continue on with a quorum making broad sweeping regulatory rulings that threaten to transform employment law by executive fiat during this last year of the Obama administration.


Judging judges’ ethics

A journalist I know questioned a two-bit Maryland legislator who voted for a law affecting property he had a financial interest in. “How about your conflict of interest?” he asked. “I got no conflict with that!” the lawmaker responded.

Alas, the American public has come to expect that kind of ethical blind spot in its legislators. But when the chief justice of the U.S. Supreme Court tells Congress he doesn’t get why folks question why the standard recusal laws that apply to all federal judges don’t apply to Supreme Court justices, I say bring in the stand-up comics.

In the chief justice’s annual report on the State of the Judiciary, John Roberts reported he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.” They are, he reminded, “jurists of exceptional integrity.” One of these jurists, Justice Clarence Thomas, failed to recuse himself from cases before the Supreme Court even though his wife worked for organizations interested in the matters at hand. When it was pointed out to him, Thomas changed his answer to his financial disclosure forms and disclosed that fact retroactively. He blamed the inadvertent error on his not understanding the nature of questions on that form, though he’d filled it out for years in the past.


Ethics at the Supreme Court

It is interesting to note that the Republican candidates for president are bashing the federal courts for what they call improper judicial activism. They do not cite Bush v. Gore as the classic example of what we learned in first-year constitutional law in law school, about courts not entering the "sticky thicket" of politics.
In fact, as The Alliance for Justice is pointing out, Justices Scalia, Alito and especially Thomas are guilty of questionable ethics in their dealings with sponsors and organizations that have matters before the court. (See here.)