The Judiciary

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 They do not cite Bush v. Gore as the classic example of what we learned in first-year constitutional law in law school, about courts not entering the "sticky thicket" of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.)


The Supreme Court’s processed mind

That most Supreme Court members went to one of the same Northeast Ivy League law schools makes a mockery of Jefferson’s America; we have become a nation of world tribes rather than regions. From the Jeffersonian perspective schools like U. Minnesota, Vanderbilt, U. Texas at Austin, U. Virginia, U. Michigan, all in the top 20 should be included. And Brigham Young, Wake Forest and UNC not far behind. The current composition of the court illustrates an America afraid of itself and constantly defaulting to the absurd illusion of 19th-century New England royal families. This is not authentic self-government. It is imitation of perceived gentry.


GOP war against women

Monday's Supreme Court decision is another example of the Republican war against matters that benefit women, this time by the ideological rightist majority on the court. Why do so many conservative Republican women support positions so hostile to the economic interests of American women? And what have women done to Republicans that the GOP cannot bring itself to support full pay equity for women?

I have raised this issue many times before, and will again. Every American should have full pay equity, including women. No American should face discrimination regarding pay, or any other issue, including women.


SCOTUS decision: Small step for Wal-Mart, giant leap for gender equality

The SCOTUS decision Monday morning to stop the lawsuit against Wal-Mart from proceeding as a class action was a tremendous victory for our economy and for women. The justices agreed unanimously that the case cannot advance in its current form, which could have included up to 1.6 million women.

Discrimination based on gender, race, ethnicity and religion is already illegal, and individual employees with legitimate complaints should have the opportunity to bring a case to court. But at a time when our economy is still facing tremendous volatility and unemployment is over 9 percent, companies cannot afford to spend their time fighting frivolous lawsuits like this one.


Supreme Court ethics

The ethics standards of Supreme Court justices are kept sacrosanct, by the justices themselves. So while all state and federal judges on all the trial and appellate courts of the United States are subject to a code of conduct, only United States Supreme Court justices are not bound by such, or any other ethical standards except for the impeachment process.

Supreme Court justices decide and abide by their own rules, an irony considering the nature of that institution. For example, while most state and some federal courts allow televised proceedings, the Supreme Court forbids them. Asked why, one hostile justice said it was because he didn’t want to be recognized in the supermarket. Another told Congress, “Over my dead body.” Thus, the general public is denied a unique educational vehicle about the making of American law.


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.


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.


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.