The Supreme Court giveth but do they also take away?

As 2016 comes to an end and the presidency of Donald J. Trump about to begin, a lot of liberals I know are very worried about what the Supreme Court will do once President Trump appoints a successor to the late Justice Antonin Scalia. They should not be too worried.

Why not? First, the two obvious choices for next Supreme Court justice are both awesome. Appointing either of us to the Supreme Court will rectify the eight-year injustice that we like to call President Obama’s inexplicable failure to name us to the federal bench.

You think you know somebody.

People are constantly told in the media that the Republican party is the party of small-or sometimes "limited"-government.  One might conclude from that Republicans might like government officals who don't show up to work.  After all, government is extremely limited in what it can do if no government officals show up to work.

Was anyone denied Confirmation?

Read the initial post on this story here.

According to the website LifeSiteNews, Father LaMoine denies that he refused to confirm Lennon Cihak.  Instead, Father LaMoine says that Mr. Cihak decided not to be confirmed.  However, Father LaMoine goes on to say that had Mr. Cihak chosen not to be confirmed, Father LaMoine would have refused to confirm him.  The story quotes Father LaMoine as saying, “You can’t have people out there saying things that are so contrary to the central teaching and doctrine of the Catholic faith, and going through Confirmation.After he put it out in the public, we would have looked like a bunch of hypocrites in confirming him.”  So if one believes Father LaMoine's version of events, Father LaMoine would have denied Mr. Cihak confirmation if Mr. Cihak had let him.  Decide for yourselves whether this is an improvement.

I want to assure our Reader(s)™ that the Catholic Church is not monolithic on this point.

The Catholic Church: still messing with children.

This is not a post about recent news of a Roman Catholic priest sexually abusing a child.  Although it would be pretty easy to do a post about that.

Fewer judicial vacancies?

Yesterday, President Obama nominated 7 people to fill vacant federal judgeships.  You can read the White House press release describing the nominees here.  We have previously discussed the issues surrounding President Obama's nominees--or lack of them--here and here.

Even with the 7 new nominations, there are still 41 seats for which no one has been nominated.  Minnesota does not have any vacancies, but I note that Wisconsin, Illinois, California, and Puerto Rico have open seats.  Mr. Torvik are you ready to serve if your president asks?

Two tiers of citizenship.

A citizen of another country who wishes to become a citizen of the United States has to, among other things, take this oath.

He sits on the House Committee on Science, Space and Technology.

Because what other committee would a congressman who does not believe in evolution sit on?

A Republican wants to raise taxes. Can you guess why?

According to Fox 34 News in Lubbock County, Texas, Tom Head, the county judge, wants to raise the tax rate in Lubbock County by 1.7 cents in the next fiscal year.  According to this, Judge Head is a Republican.  Given the modern Republican party is famously anti-tax, Judge Head must have a pretty good reason for wanting to increase taxes, right? 

A sitting state supreme court justice lost a primary?

Remember when Texas Governor Rick Perry was considered to be a serious candidate for president? If not perhaps one of these links will refresh your recollection. 

Will North Dakota eliminate property taxes?

North Dakotans are voting today.  Or, more accurately, some North Dakotans are voting today.  Among the items on the ballot is a ballot initiative called "Measure 2" that would prohibit property taxes in North Dakota.  The initiative is the result of a group called "Empower the Taxpayer."  The group believes that the power to tax property means that the citizens of North Dakota do not own their homes.  Instead, the various entities that can tax property own the homes of everyone in North Dakota.  Mr. Torvik has more of a background with philosophy so he may understand this point better than I.

Are Republicans responsible for the judicial crisis?

The crisis in the judiciary is not entirely the Senate's fault.

Among the law news last night and today was the fact that the United States Senate has reached a deal that will allow 14 of President Obama's judicial nominations will be confirmed by the Senate.  The Washington Post's coverage of the deal is here. 

One of the popular themes of the fight over judicial nominations is that Republicans in the Senate are stalling the nomination process as a political move to ensure that President Obama doesn't get to appoint too many judges rather than the underlying qualifications of any particular nominee.  There is, of course, some evidence of this.  As the Post's article notes, each of the 14 received unanimous approval from the Senate judiciary committee but the nominations were still being held up.  Also, the article notes that, "Obama’s judicial nominees wait an average of 93 days to be confirmed, according to Senate Democrats. Republican nominees at the same point in George W. Bush’s presidency averaged a 22-day wait." 

Looks bad for the GOP right? I certainly thought so but then I saw the last sentence of the article.  "There are 83 judicial vacancies, according to Senate Republicans, who urged Obama this week to name his nominees to fill the vacant positions."  Are there currently vacancies on the federal bench for which President Obama has not nominated a successor?  It appears that there are.  According to judicialnominations.org, a project of the American Constitution Society for Law and Policy, there are forty-four openings on the federal bench without a proposed replacement.  The are listed below.  The number next to the court name is the number of open seat (open gavel?).

District of Massachusetts 1

District of Puerto Rico 1

Eastern District of New York 1

Southern District of New York 4

Western District of New York 1

Eastern District of Pennsylvania 4

Middle District of Pennsylvania 2

Eastern District of North Carolina 1

Fifth Circuit Court of Appeals 1

Middle District of Louisiana 1

Northern District of Mississippi 1

Eastern District of Texas 1

Southern District of Texas 1

Western District of Texas 1

Western District of Kentucky 1

Eastern District of Michigan 1

Seventh Circuit Court of Appeals 1

Northern District of Illinois 1

Western District of Wisconsin 1

Ninth Circuit Court of Appeals 1

District of Arizona 1

Central District of California 2

Northern District of California 2

District of Oregon 1

Tenth Circuit Court of Appeals 1

District of Kansas 1

Southern District of Florida 1

Northern District of Georgia 2

Circuit of the District of Columbia 3

District of District of Columbia 1

This list does not include announced future vacancies. 

While the pace of confirmations should certainly be sped up, it is hard to see how the GOP is entirely to blame for an understaffed judiciary when so many vacancies do no even have a nominee.  More troubling is the fact that President Obama has apparently decided that Mr. Torvik and I are not even qualified to be nominated to the bench in those positions where the President apparently cannnot find anyone else to do the job.  It's almost like he doesn't read this blog.

Right Here Right Now (or why Maryland just got more palatable)

If the work of David Simon has taught us anything, it is that Maryland is a hellhole. However, just as a blind squirrel sometimes finds a nut, Maryland sometimes gets things right.

Lost amid the carnage of the Wisconsin/Minnesota blawg war was the story that the Maryland legislature has passed a bill legalizing same sex marriage. Maryland's Governor is expected to sign the bill into law. Assuming that happens, Maryland will become the eighth state to legalize gay marriage. The happenings in Maryland contrast those in New Jersey where the Governor of New Jersey vetoed the New Jersey legislature's attempt to legalize same sex marriage (although the veto may be overridden). Meanwhile, Minnesotans will get to vote in November on whether to make Minnesota's ban on same sex marriage part of the Minnesota Constitution. Also, Judge Tonya Parker, a judge in Dallas, Texas has decided to turn down requests to perform marriages until same sex marriage is legal in Texas. Because of this the blawg Above the Law has named Judge Parker it's "Judge of the Day." (As an aside, the Judge of the Day is a weird honor. The most recent winner of the Judge of the Day before Judge Parker got the award because he was caught on video beating his disabled daughter.)

Whether you are David Boies or failed Iowa gubernatorial candidate Bob Vander Plaats, I think everyone can agree the fact that 16% of the states now allow same sex marriage is remarkable. The Defense of Marriage Act (DOMA) was signed into law on September 21, 1996. It was fast track legislation and passed with overwhelming majorities in both houses (85-14 in the Senate; 342-67 in the House of Representatives). Now, before the bill is old enough to drive in most states, it seems that laws prohibiting same sex marriage are being consigned to the ash heap of history.

The only law that I can think of that rivals DOMA in terms of being popular when passed but quickly becoming unpopular is the Eighteenth Amendment, i.e., the prohibition amendment. However, it was somewhat more controversial as it only passed 65-20 in the Senate and 282-128 in the House of Representatives. Those are certainly healthy margins but not as healthy as the ones when DOMA passed.

Anyway, my favorite professor once commented one knows one is witnessing an amazing historical event when something happens that seemed unimaginable shortly before. He was speaking of the fall of the Berlin Wall but the sentiment is applicable here. DOMA passed by such wide margins because politicians in both parties thought that voting for it was a surefire way to please voters. At the time it was hard to visualize the possibility that same sex marriage would become legal by any manner other than court intervention. Yet, Maryland, New York, Vermont, New Hampshire, Connecticut, and (depending on whether a referendum defeats the legislation) Washington have all used the legislative process to legalize same sex marriage. Obviously politicians no longer feel that banning same sex marrriage is a surefire way to please voters. I doubt supporters of same sex marriage in 2006, let alone, 1996, would have thought this would happen so quickly.

Finally, a word of caution to folks in Minnesota (and possibly Washington, Maryland, and New Jersey where anti-gay marriage groups are pledging to mount ballot campaigns to overturn the laws), you might want to stay out of pizza restaurants until after November.

Sometimes judicial philosphy has nothing to do with it.

Probably because he has been keeping this blog afloat while I dealt with some nasty health and work issues, Mr. Torvik made a rare misstep recently. While discussing Wisconsin Supreme Court justice David Prosser's age and the proper focus of judicial elections, he pointed to the recent Iowa retention elections as an example of a proper judicial election. Mr. Torvik wrote:

What should a judicial election be about? In my view, it should be solely about judicial philosophy. For example, the campaign to "unretain" the three justices who joined the Iowa Supreme Court's unanimous decision overturning the state's law banning same-sex marriage was at least focused on an issue of judicial philosophy: restraint versus activism. You can argue the merits of the issue all day long, but at least it was an argument about judging. Unfortunately, those are not the kind of issues being argued about in the recent Wisconsin judicial elections.

As discussed in Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices," the debate over the theories of judicial restraint versus judicial activism began in the 1930s when Franklin Roosevelt's various appointees to the Supreme Court started arguing over how to rule on New Deal legislation. Judicial activism, defined by Black's Law Dictionary as a philosophy of judicial decision-making that allows judges to use their personal views about public policy to guide their decisions, was practiced by Justice William O. Douglas. Judicial restraint, the theory that judges should defer to the Legislature about matters of public policy, was practiced by Justice Felix Fankfurter. Mr. Feldman's book is a good read and I heartily recommend it. Mr. Feldman points out that the first proponent of Originalism was liberal Justice Hugo Black. An interesting counterpoint the next time some swell at a cocktail party says that originalism is a doctrine made by conservatives to rule the way they wish to rule. I digress, however.

As a person who is inordinately proud to have been born in Iowa, I would love to believe that Iowa voters went to the polls to thinking about whether Justice Douglas or Justice Frankfurter was correct. However, I don't think there is any evidence that suggests Iowans were considering these things. They were thinking about a specific ruling, not the judicial philosophy behind the ruling. Put another way, the retention election appears to have been about anti-gay bias. First, as this article notes, 57% of voters in Iowa's recent judicial retention elections "opposed gay marriage." Moreover, the article also notes that two out of state anti-gay marriage groups, the American Family Association and the Family Research Council, spent nearly $700,000 in television ads and other efforts to defeat the justices. Are we to believe that if the justices in Iowa had found a right to gay marriage while practicing judicial restraint, that these groups would not have spent money to defeat them? The Iowa Court of Appeals judges, who also ruled in favor of gay marriage, were not defeated. If the election had been about judicial philosophy, one would expect a similar defeat. The appellate court judges weren't defeated because Because they weren't targeted by the interest groups. Judicial philosophy had nothing to do with it.

As I noted here, the results of the Iowa retention election are depressing. The results tell judges if they want to keep their job, they need to rule in favor of the majority regardless of whether the rights of the minority are being trampled and without regard for any particular philosophy of judicial interpretation. There is no way that is a good result and certainly not one that should be held up as an example of a good judicial election.

Wisconsin Supreme Court: more shenanigans

The most recent Wisconsin judicial election has been a topsy-turvy affair.

The understatement of the year (so far).

In a remarkable bit of candor, a member of the Minnesota Senate has admitted that a bill he purportedly authored is "really stupid." According to the Bemidji Pioneer, Republican John Carlson, a freshman senator representing Bemidji, Minnesota, has pulled a bill that would have repealed Minnesota's Pay Equity Act. The Pay Equity Act is eliminates gender-based wage disparities in public employment in Minnesota local governments.

As you might imagine, Senator Carlson’s bill caused a bit of a stir. The Pioneer ran an editorial against the bill and Senator Carlson wrote an op-ed opinion defending it on February 15.

Since his op-ed, Senator Carlson changed his view of the bill. He recently told a group of Minnesota teachers that he pulled the bill. He also apologized for authoring the bill. I am not sure he should have apologized for that since the Pioneer’s article makes it seem like he did not, in fact, author the bill. How does the article do that? By presenting Senator Carlson’s admission that he didn't know what the bill did. Senator Carlson said “What I was told by the League of Minnesota Cities was not to worry about it as it’s not about fair pay for women. It’s about some onerous reporting problems and it costs a lot.” So, because his interest group said that the bill he wanted to repeal was not about pay equity (despite the name of the bill), Senator Carlson just went along with what he was told. It apparently did not occur to him that the cost in question was, you know, paying women as much as men. Nor did it occur to him to check.

To his credit, Senator Carlson admits that he “didn’t do [his] homework very well.” One might suggest, that he did not do his homework at all. However, we should keep in mind that, as Senator Carlson puts it, “When you’re new in the Legislature, the learning curve is unbelievably steep and we honestly don’t know what we don’t know.” I can certainly agree that we often don’t know what we don’t know. However, I would have assumed that the “author” of a piece of legislation might know what his bill actually does.

A deal on judges means winners and losers

The AP reports that Republicans and Democrats in the Senate have made a deal on judicial nominations, "after a monthslong blockade."  As you note, Judge Susan Nelson in Minnesota is a beneficiary of this deal.  Among the sacrificial lambs, however, appears to be Louis J. Butler, in Wisconsin. 

You may recall that Butler was previously appointed to the Wisconsin Supreme Court but failed to retain the seat in one of the most hotly contested (some might say vicious) judicial campaigns in memory.  His nomination to fill a vacancy in the Western District of Wisconsin angered conservatives, who thought a life-tenure judgeship was too rich a consolation prize for someone who'd been rejected by Wisconsin voters.  Their opposition appears to have won the day.