The Judiciary

Top Dems Change Tune — And History — on SCOTUS Filibusters

With Democrats in control of the White House and both chambers of Congress, Senate Democrats are coming out against a filibuster for whomever President Obama nominates to the Supreme Court. Going one step further, key Democrats are denying their own support of the filibuster on all sorts of judges — from district to appeals courts to the highest court in the land.

On Sunday, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) told ABC's "This Week" that “we never filibuster Justices of the Supreme Court.” In fact, Leahy himself supported the filibuster.

SCOTUS and Median Voter Theory

As many commentators have already pointed out, the replacement of David Souter is unlikely to alter the nature of future Supreme Court decisions. The Supreme Court, as opposed to the United States Senate, operates strictly by majority rule, which means the jurist who occupies the median vote on the nine-member bench exercises an inordinate amount of power, particularly on divisive cases.

Justice Kennedy, the current king of the median vote (previously occupied by Justice O’Connor) can swing almost any controversial decision by making sure he sits in the middle of a decision. He can do that because Supreme Court decisions are a multi-stage process full of negotiations and compromises.

Judging Lawyers by Their Clients

In a recent press review of New York Sen. Kirsten Gillibrand’s (D) role as a young attorney representing tobacco companies, one law professor was quoted as saying that it would be unfair to assess lawyers by whom they represent. “Nobody would want to live in a world in which lawyers are judged by the clients they take,” he suggested. Indeed, that it is an article of faith among most lawyers, and mostly a devious one, in my judgment.

Guns and Courts

It is rare that I find myself in agreement with prolific jurisprudential gadfly Judge Richard Posner, though he is always interesting and provocative. Indeed, he is so prolific that I speculate there really is no one Richard Posner, but a basement full of Posner scholar-elves who, like Santa’s helpers, grind out countless articles, reviews, decisions and books. But to my surprise, I do agree with his interesting critique, in a recent issue of The New Republic, of the United States Supreme Court’s decision in District of Columbia v. Heller, the recent gun control case.

The Second Amendment states that “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Before Heller, the Supreme Court ruled four times — in 1875, 1886, 1894 and 1939 — that the amendment restricts the national government’s powers over state militias, but does not assure people the personal right to bear arms. Even conservative jurists — the late Justices Lewis Powell and Warren Burger, for example — have said that the Second Amendment does not ban reasonable gun controls nor assure an individual right to bear arms. Despite those precedents, and the escalation of gun violence to shocking levels, gun advocates have effectively fought against all controls. Politicians who support modest, rational gun controls, which the majority of the public approves, have suffered for their advocacy.

Scalia's Wrong Interpretation of the Second Amendment

Justice Antonin Scalia believes in the theory of originalism. In other words, he believes the Constitution is a dead document, intended to reflect things the way they were in 1787 and never to change.

Unfortunately, Scalia had a chance to apply that theory by leading the Supreme Court in overturning the city of Washington’s ban on handguns. For Scalia and four other conservatives on the court, if militia in colonial times could have a musket in their home, then men today can have an automatic killer pistol in their home.

How simplistic. How wrong. How dangerous.

Clarence Thomas Takes the Low Road, and Should Recuse Himself from Key Cases

The new term has begun for a bitterly divided court in a dangerously divided nation, and the most visible event was a Supreme Court justice using the court's return as a book promotion to remind the world of his enemies, demons, biases and vendettas.

This is extraordinary and unprecedented.

Justice Clarence Thomas should now recuse himself from any cases involving any litigants who opposed his confirmation, because his attacks on them destroy any pretense of judicial impartiality.

Clarence Thomas Plays Race Card

Life has been good to Clarence Thomas.

After a rough start, he got into good Catholic schools. He graduated from Yale Law School, thanks to affirmative action. He got a good job with the Equal Employment Opportunity Commission. He’s now on the U.S. Supreme Court.

Yet Clarence Thomas is still a bitter, angry man. And he spews nothing but bile in his memoir, comparing opponents of his nomination back in 1991 to members of the Ku Klux Klan. In other words, he implies, they didn’t want him on the court because he was black.

A Doctor's Duty

An interesting ruling on abortion occurred in the high courts of Trenton, N.J., recently. There was a unanimous decision that a doctor has no duty to tell a woman considering an abortion that her embryo is an “existing human being.” What makes this ruling interesting is that it actually cuts both ways. As a Christian and someone who respects all life, it seemed at first like this story was aimed against people who believe that way, but the reason for the ruling is quite fascinating. 

The Sledgehammer Gavel

There is an old joke about the brilliant psychiatrist who dies suddenly. When he gets to the Pearly Gates, he berates St. Peter.

"Why did you take me away so early?" he exclaims.

"Well, we have a problem with God," St. Peter responds. "He thinks he's a federal judge."