My Supreme Court Fantasy

One of my friends asked if she would go to hell because she was glad that Antonin Scalia was dead.  I have mixed feelings.  First, I’m very sad for his family as sudden death is always difficult.  On the other hand, I am happy he is no longer a factor on the Supreme Court.  Justice Ruth Bader Ginsberg wrote on the the nicest tributes I’ve seen.  This is from Vox.

So it’s no surprise that of all the tributes to Justice Scalia, who died Saturday of an apparent heart attack at the age of 79, Justice Ginsburg’s is uniquely moving. It’s a tribute to Scalia as an interlocutor, a fellow opera lover — including a reference to the opera Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportionswhich debuted in 2015 — and a “best buddy.”

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: ‘We are different, we are one,’ different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his ‘energetic fervor,’ ‘astringent intellect,’ ‘peppery prose,’ ‘acumen,’ and ‘affability,’ all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

So my fantasy is imagining Justices Ginsburg, Sotomayor, and Kagan joined by a Justice Amy Klobuchar.  What a quartet that would be!

Patrick Condon writes in the Minneapolis Star Tribune

U.S. Sen. Amy Klobuchar is likely to mix it up in the coming political brawl in Washington around replacing Supreme Court Justice Antonin Scalia, and not just because her own name has again surfaced as a potential high court nominee.


Klobuchar sits on the Senate Judiciary Committee.  This can be a plus because she has worked with all the Republican members.

Obama said late Saturday that he intends to try to fill the vacancy “in due time.” It is already shaping up to be an epic battle as Obama has been handed the rare chance to swing the ideological balance of the court, where Scalia served as one of the most reliably conservative voices in the 5-4 majority.

As Republicans who control the U.S. Senate vow to block Obama, the president will look for judiciary committee allies like Klobuchar and Franken. But Klobuchar, an attorney and a former elected prosecutor, may first be considered as a prospect.

“I think there’s a bunch of reasons she makes sense,” said Norman Ornstein, an expert on Congress and U.S. politics at Washington’s American Enterprise Institute, who was touting Klobuchar’s case on Twitter over the weekend. “I think there’s a substantive argument for her, and a political argument for her.”

Ornstein said by choosing a U.S. senator, Obama could make it a harder for Senate Republicans to block a trusted colleague for the entirety of 2016. And he suggested it might be a good time to reverse the recent presidential trend of only picking judges.

“There was a long tradition of selecting people who had been in public life, gone through elections and served in legislatures or executive office,” Ornstein said.
 Chief Justice Earl Warren and retired Justice Sandra Day O’Conner are two examples cited.
President Obama may ultimately decide that Klobuchar is too political an appointment and we don’t know if she would even be interested, but I can dream of the Mighty Four on the Supreme Court.

Elizabeth Warren, United States Senator

The day we’ve been waiting for.  This picture is from one of her three swearing-ins.  All the Senators get sworn in together and then they get sworn in individually by Vice President, Joe Biden.  Her third, which I plan to attend will be here in Boston, just down the street from me, on Saturday.  Justice Elena Kagan will do the honors.

Elizabeth Warren being sworn in by Vice President Joe Biden

Elizabeth Warren being sworn in by Vice President Joe Biden

The Boston Globe reports

Elizabeth Warren arrived at the Capitol on Thursday morning carrying a black L.L. Bean backpack in the manner of a student in one of her former Harvard classes. Inside was her treasured, tattered King James Bible, used since third grade and chosen for her Senate swearing-in.

“I know people come with big fancy family Bibles,” Warren said in an interview before her induction. “Mine’s a little more modest.”

As she waited, the first woman elected to the Senate from Massachusetts mused about the moment.

“This chair, this particular Senate seat, was held by John Quincy Adams, Daniel Webster, [Charles] Sumner — and of course Senator [Edward M.] Kennedy for half a century,” Warren said. “Men of principle, men who fought hard for the people of the Commonwealth of Massachusetts and for this country.”

All of us who worked for her election – and those who didn’t – should wish her well.  She has history to live up to and we know she will join the list as a great Senator.

[And I just realized I forgot to mention Bruce Mann, Warren’s husband, in the caption to the picture.]

Photograph Chip Somadevilla / Getty Images

Justice Clarence Thomas should resign

I’ve been thinking about this for several days now.  I’ve asked myself if this is just the left/progressive/liberal media piling on someone they have never liked much?  Am I attracted to this story because I never wanted him confirmed in the first place?  (I have my “I believe Anita” button somewhere.)  Is it because he never asks questions?  Because 99% of the time he does what Justice Scalia does?

I don’t think the New York Times is the liberal media.  And, yes, I’d like him to fall as payback for what he did to Anita Hill.  (I can’t be as forgiving as she).  I do believe that having him on the Court is a waste of a seat.  I also know that when Justice Kagan does not recuse herself from voting on the health care reform Fox etc. will be jumping all over her.  Justice Kagan has, however, recused herself from several cases that were already filed and being considered by the Department of Justice as well as her former office, Solicitor General.

What is the Times story about?  It is about preservation of a site in Pin Point, GA where Justice Thomas’ mother once picked crabs and the creation of a museum there.  It is about the owner making connection with Harlen Crow through Justice Thomas.  Crow, you may remember, financed the Swift Boat campaign against Senator John Kerry.

Mr. Crow stepped in to finance the multimillion-dollar purchase and restoration of the cannery, featuring a museum about the culture and history of Pin Point that has become a pet project of Justice Thomas’s.

The project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.

OK, Justices have to have a life outside of court and they have friends.  But as the Mike McIntire who wrote the story in the Times points out

In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.

Although the Supreme Court is not bound by the code, justices have said they adhere to it. Legal ethicists differed on whether Justice Thomas’s dealings with Mr. Crow pose a problem under the code. But they agreed that one facet of the relationship was both unusual and important in weighing any ethical implications: Justice Thomas’s role in Mr. Crow’s donation for the museum.

The code says judges “should not personally participate” in raising money for charitable endeavors, out of concern that donors might feel pressured to give or entitled to favorable treatment from the judge. In addition, judges are not even supposed to know who donates to projects honoring them.

What do other Justices, Justices on the other side of the Court’s ideological divide do?

It is not unusual for justices to accept gifts or take part in outside activities, some with political overtones.

Justice Stephen G. Breyer has attended Renaissance Weekend, a retreat for politicians, artists and media personalities that is a favorite of Democrats, including former President Bill Clinton. Justice Ruth Bader Ginsburg participated in a symposium sponsored by the National Organization for Women’s Legal Defense and Education Fund, and a philanthropic foundation once tried to give her a $100,000 achievement award. She instructed that the money be given to charity.

And as I pointed out earlier, Justice Kagan has recused herself from a number of cases.

Justice Thomas and Harlan Crow are friends.  They spend time together.  Crow is helping to finance the museum and Thomas has done more than simply introduce the property owners to him.  According to the Times story he has picked the people to put the exhibit together and has worked on the film that will be shown.  Opposition first came from a group that opposes Thomas politically, but does that make this suspect?

No one is saying that Crow and his money have directly influenced any of Thomas’ votes.  But we can have suspicions.

Mr. Crow has not personally been a party to Supreme Court litigation, but his companies have been involved in federal court cases, including four that went to the appellate level. And he has served on the boards of two conservative organizations involved in filing supporting briefs in cases before the Supreme Court. One of them, the American Enterprise Institute, with Mr. Crow as a trustee, gave Justice Thomas a bust of Lincoln valued at $15,000 and praised his jurisprudence at an awards gala in 2001.

The institute’s Project on Fair Representation later filed briefs in several cases, and in 2006 the project brought a lawsuit challenging federal voting rights laws, a case in which Justice Thomas filed a lone dissent, embracing the project’s arguments. The project director, an institute fellow named Edward Blum, said the institute supported his research but did not finance the brief filings or the Texas suit, which was litigated pro bono by a former clerk of Justice Thomas’s.

“When it came time to file a lawsuit,” he said, “A.E.I. had no role in doing that.”

Plus we all know that the Affordable Health Care Act will be coming to the Court.

Supreme Court ethics have been under increasing scrutiny, largely because of the activities of Justice Thomas and Ms. Thomas, whose group, Liberty Central, opposed President Obama’s health care overhaul — an issue likely to wind up before the court. Mr. Crow’s donation to Liberty Central was reported by Politico.

So what does this all mean?  What can anyone do about it?

The Code of Conduct for judges does not directly apply to the Supreme Court largely because there is not higher court to enforce it.  Justices do say that they follow the Code anyway.  But Thomas does not seem to have reported all the travel paid for by Crow.  Even as a group of law professors and Common Cause call for legislation to extend the Code directly to Supreme Court Justices one has to wonder who would be the enforcer.  If a Justice is already ethically aware there is no problem.   But there will always be a Clarence Thomas who appears not to have a clue.  His friends should tell him it is time for him to leave the Court.


The Supreme Court, Baseball and Elena Kagan

Back in April in one of my last posts, I wrote about the Supreme Court.  Today, nominee Elena Kagan responded to questions about Chief Justice John Roberts’ metaphor that being judges is like being umpires.

According to

Supreme Court nominee Elena Kagan on Wednesday gently criticized Chief Justice John Roberts’s hotly debated assertion that a Supreme Court justice’s job is “to call balls and strikes” like an umpire, suggesting the description may have misled the public about the work judges do.

 “The metaphor might suggest to some people that law is a kind of robotic enterprise, that there’s a kind of automatic quality to it, that it’s easy, that we just sort of stand there and, you know, we go ball and strike, and everything is clear-cut, and that there is no judgment in the process. And I do think that that’s not right,” Kagan said in response to a question from Sen. Amy Klobuchar (D-Minn.) “It’s especially not right at the Supreme Court level where the hardest cases go and the cases that have been the subject of most dispute go.”

 Kagan went on to imply that Roberts may have downplayed the degree to which judging requires perspective.

 “Judges do, in many of these cases, have to exercise judgment. They’re not easy calls. That doesn’t mean that they’re doing anything other than applying law,” Kagan said. “But we do know that not every case is decided 9-0, and that’s not because anybody’s acting in bad faith. It’s because those legal judgments are ones in which reasonable people can reasonably disagree sometimes. And so in that sense, law — law does require a kind of judgment, a kind of wisdom.”

 Her mild criticism of Roberts was a notable departure for Kagan, who has studiously declined senators’ repeated invitations to discuss her opinions on previous Supreme Court’s decisions or to cast aspersions on the motivations or analytical techniques of the justices.

The hearings have turned into a discussion about what an activist judge looks like.  Is it Justice Thurgood Marshall as some Republicans tried to say an activist judge?  And if he is Elana Kagan will be the same because she clerked for him and will somehow channel him.

Supreme Court nominee Elena Kagan has come under an unusual line of attack from Republicans on the Senate Judiciary Committee. The Senators are going after Kagan’s 1988 clerkship for former Supreme Court Justice Thurgood Marshall, the first-ever African American justice, who retired in 1991 after helping to bring the court through some of the biggest civil-rights cases in its history. Some Republicans are taking this as an opportunity not only to put Marshall on trial but also make Kagan the chief witness. Here’s what’s happening, why, and what it means.

  • Going After Thurgood Marshall The Washington Post’s Dana Milbank reports, “‘Justice Marshall’s judicial philosophy,’ said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, ‘is not what I would consider to be mainstream.’ Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall ‘might be the epitome of a results-oriented judge,’ he said. Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a ‘well-known activist.’ Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view ‘does not comport with the proper role of a judge or judicial method.’ Sen. John Cornyn (R-Tex.) pronounced Marshall ‘a judicial activist’ with a ‘judicial philosophy that concerns me.'”
  • Making Everything About Marshall Talking Points Memo’s Christina Bellantoni reports, “Ranking member Sen. Jeff Sessions (R-AL) criticized Kagan for having ‘associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge’s preferred social policies,’ citing Marshall as his son, Thurgood Marshall Jr., sat in the audience of the Judiciary Committee hearings. In an example of how much the GOP focused on Marshall, his name came up 35 times.”

Of course, I think, along with Senators Al Franken,  Patrick Leahy and many others that actually the Roberts’ Court is the activist court.

When Judiciary Committee Chairman Patrick Leahy called on Franken, Minnesota’s junior Senator got right to his criticism that the current Supreme Court has been favoring powerful corporate interests over the rights of individuals.

Franken talked about how he believes that mandatory arbitration clauses strip Americans of the right to have grievances heard in a neutral court.

“Do you still agree … that one of the glorious things about courts is that they provide a level playing field in all circumstances?” he asked Kagan.

She replied that she agreed “very strongly” with Franken.

Democrats have accused the court — led by Chief Justice John Roberts — of overstepping its role by establishing policy rather than interpreting the law. Franken has been outspoken on the issue. In his time with Kagan, Franken was sharply critical of Chief Justice Roberts.

He accused Roberts and other justices of judicial activism that contradicted their own stated tenets. Franken cited the campaign finance case “Citizens United” as an example of the Robert’s court going beyond specific questions before it.

The landmark ruling this year determined that corporate funding of political broadcasts cannot be limited. It stemmed from a case of a non-profit corporation airing a film critical of Hillary Clinton.

The New York Times reported

Indeed, Ms. Kagan was unusually expansive when talking about matters in which she is already on record. She volunteered that she is not morally opposed to the death penalty, a position she took when she was confirmed as solicitor general. And she spoke freely about this year’s ruling in Citizens United v. Federal Election Commission, in which the conservative bloc on the court ruled against her, striking down legal limits on corporate spending to influence elections.

Democrats have portrayed that ruling as “conservative judicial activism.” Ms. Kagan — who as solicitor general argued in defense of the campaign finance rules — said she convinced herself in preparing that “we had extremely strong arguments.”

Ms. Kagan also displayed a bit of her law professor side, talking more extensively about abstract issues like how constitutional law develops over time. In a mild challenge to the conservative view that the Constitution can be interpreted based only on the original meaning of its text, she said there were also instances in which the Supreme Court had applied a principle embedded in the Constitution in a new way.

She cited the 1954 case of Brown v. Board of Education, which struck down segregation in schools. The case relied upon the 14th Amendment’s guarantee of equal protection of the laws, yet Ms. Kagan noted that the amendment’s drafters thought it “perfectly consistent with segregated schools.”

Justice Thurgood Marshall, who as a lawyer argued the Brown case, has emerged as a dominant figure in the hearings. Ms. Kagan clerked for him, and Republicans, led by Senator Jon Kyl of Arizona, have attacked Justice Marshall as a liberal “activist” and expressed concerns about Ms. Kagan’s association with him.

On Tuesday, Ms. Kagan told Mr. Kyl that she was not her former boss. “I love Justice Marshall,” she said. “He did an enormous amount for me, but if you confirm me to this position, you’ll get Justice Kagan, you won’t get Justice Marshall. And that’s an important thing.”

I think that Elena Kagan is doing her best to criticize the Republicans and the current conservatives on the Supreme Court as she can without antagonizing her future colleagues.  She isn’t a “progressive activist” (whatever that is), but I think she is smart enough and diplomatic enough to get Justice Kennedy’s vote and maybe even Justice Alito’s vote.