The Judiciary

Assault on free speech overturned

When politicians face too much heat from the people, they try to do things like enact campaign finance reform.

And eventually, the Supreme Court decides that these efforts to keep the people at bay run afoul of the First Amendment.

Several years ago, my former boss, Speaker Denny Hastert, tried to stop moderate Republicans, like Chris Shays and John McCain, from joining with Democrats in passing campaign finance reform.


The latest on televising important court cases

The latest chapter in the long debate over televised court proceedings arose in the ongoing federal trial in San Francisco over California Proposition 8 barring same-sex marriage. In that case, Hollingsworth v. Perry, both sides on the incendiary issue have lined up articulate lawyers, spokesmen and expert witnesses to propound their views. Whatever one’s views on the substantive subject of gay marriage, the case presents an interesting opportunity to educate the public on a contentious issue of contemporary policy.


Legalizing the lawmakers

How the Senate perverts the lawmaking process with its filibuster rule is a subject I wrote about on this site on Dec. 22, 2009. I return to the subject, inspired by Thomas Geoghegan’s scholarly op-ed analysis in today’s New York Times.

My earlier focus was on the workings of the Electoral College and our system of bicameral legislative government on democracy. A small fraction of the population determines our federal laws by diluting the votes of large states’ populations. Some states’ total populations are less than some cities in other states. New Yorkers or Californians could quip facetiously about the populations of states like Wyoming, “We’ve got more people in our building.”


About our courts

One major campaign issue last year was the need to improve our federal courts. I wrote about this subject several times on this blog. Approaching the first quarter of the Obama presidency, his scorecard is tepid and disappointing.

On Jan. 20, 2009, the new president inherited 55 vacancies on the federal courts, which would be understaffed if all the seats were filled. As of Nov. 30, 2009, there were 98 vacancies, 20 on the circuit (appellate) courts and 78 on the district (trial) courts.


State secrets

The Obama administration just doesn’t get it. Questioned from day one how it planned to handle prior administrations’ state-secrets policies in light of its proclaimed commitment to openness and transparency, it repeatedly missed opportunities to assure meaningful reform. The latest so-called reform measure reportedly sets up a review process in the Justice Department to scrutinize claims of state secrecy in litigation.


Contempt of court

When court orders are disobeyed or trial participants misbehave, judges invoke their historic power of civil contempt. They summarily imprison the culprit until he or she does what they were ordered to do. The rationale is that the prisoner has the key to the prison door, and can be released by conforming to the court’s order. The power is supposed to be remedial, not punitive.

The idea makes sense. How could any government body operate without the power to control its own proceedings? The problem is that every so often someone is adamant and ends up summarily incarcerated in prison for egregiously long, sometimes indefinite periods. The case of Susan McDougal in the Clinton era drew attention to this phenomenon. She refused to testify before the Whitewater grand jury and languished in jail over a year. In her notorious custody battle, Dr. Elizabeth Morgan was imprisoned for 25 months for refusing to tell where her daughter was secreted.

Bullying Sotomayor

One thing is certain after the confirmation hearings this week for Judge Sonia Sotomayor — there is no way she can explain, defend or recant her "wise Latina woman" comment. She called it a "rhetorical flourish" that fell flat, and she said it was wrong and on and on, but the point is she said it numerous times in numerous speeches and she meant it. Enough said.

That aside, why did Sen. Lindsey Graham (R-S.C.) — after admitting she would be confirmed barring a meltdown, and that he himself could possibly support her — have to treat her so badly?

The Sotomayor Hearingzzzz

With the Senate Judiciary Committee questioning of Judge Sonia Sotomayor over, a topic talked about almost as much as "wise Latina" comments has been about why the hearings have been so, well, boring.

There are few responsibilities a senator has that are of more long-term reach than deciding on a Supreme Court nominee. One seat on the Supreme Court can change the court's nature for a generation or more.

The ‘Activist’ Court

OK. I am not, nor have I ever been, a lawyer. I took Constitutional Law in college just a few short years ago — 40, maybe — and I don’t devour Supreme Court cases, judiciously reading the footnotes and the footnotes to the footnotes.

So, you ask, why do I feel compelled to comment on the latest Ricci case? I am not going to discuss Title VII or the lower-court rulings or the effect on Judge Sotomayor’s appointment to the Supreme Court. Rather, I have another angle.

Sotomayor is No Reverse Racist

The following appears originally in The Washington Times of Monday, June 15.

By now, most people have heard — negatively — about the 2006 case Ricci v. DeStefano, in which 18 New Haven firefighters (17 white and one Hispanic) were not promoted after passing the required tests because there were no blacks whose test scores were high enough to qualify them for promotion.