The Judiciary

Most people have fixed positions on the merits of single-sex marriage. Fixed, if not contentious. For those who do not, or do but have an open mind, the discussion yesterday at the Cato Institute in Washington was enlightening.

A double odd couple of speakers discussed the recent Perry trial in California dealing with Prop 8 (and the federal DOMA), state and federal laws limiting the legality of single-sex marriage. Odd because the organizational sponsors were Cato’s Bob Levy and Center for American Progress CEO John Podesta; and the lead speakers were the two lawyers who argued the Perry case — conservative advocate Ted Olson and liberal lawyer David Boies (who opposed each other in the 2000 election case). All their commentaries were informative and persuasive.

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 Obama administration bowed to the conditions that federal Judge Roger Vinson placed upon it when he provided a stay to his finding that the healthcare law was unconstitutional.

Vinson put two stipulations on his stay (which allows the administration to continue writing regulations on the law, which otherwise would be defunct). The first was that the administration file an appeal of his original ruling of unconstitutionality within seven calendar days, and the second was that the appeal pursue an expedited process to the Supreme Court.

Six days later, Obama’s legal team filed its appeal.

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.

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.

It is a little startling to hear Judge Andrew Napolitano on Fox Business publicly explaining to millions of viewers ideas that were considered seditious and marginal five years ago.

Tea Party ideas demonized by the MSM. Crazy Jeffersonian ideas from the Libertarian ghetto suggesting that states have sovereign rights protected by the Constitution. “Are you serious?” Speaker Nancy Pelosi (D-Calif.) replied when the idea was first suggested to her.

You know that old saying: “You don’t send a boy to do a man’s job.” Well, it’s obvious now that’s just what the people of Massachusetts did.

We knew he could never measure up to Teddy Kennedy. But, initially, there were high hopes that Scott Brown would continue the tradition of courageous, independent New England Republicans like Edward Brooke, Nelson Rockefeller, Prescott Bush and even George H.W. Bush.

What a huge disappointment. With Elena Kagan, Brown had an opportunity to prove his potential as a real leader — and blew it.

Senate Republican leader Mitch McConnell of Kentucky questioned Supreme Court nominee Elena Kagan on a series of notes she had written while serving as a political adviser in the Clinton administration.

On one page, Kagan scribbled that a proposed ban on soft-money donations would “affects Repubs, not Dems!” McConnell rightly seized on these documents to question whether “Ms. Kagan’s work in the Clinton White House reveals a woman who was committed to advancing a political agenda — a woman who was less concerned about objectively analyzing the law than the ways in which the law could be used to advance a political goal.”