Category Archives: Law: The Supremes

Random Fact

Maryland has no statute of limitations for attempted rape, according to a web page at RAINN (Rape, Abuse & Incest National Network):

I mention this à propos de rien.

Posted in Law: Criminal Law, Law: The Supremes, Politics: The Party of Sleaze | Leave a comment

Pop Quiz

The “International Order of St. Hubertus” is:

A) A key part of the plot in J.K. Rowling’s next Harry Potter novel.

B) A mythical secret society said to have originated in Oxford.

C) A society of rich hunters who were having a meeting at Cibolo Creek Ranch where Justice Scalia died.

D) A knightly order founded by Count Franz Anton von Sporck in Bohemia in 1695, and currently headed by Grand Master His Imperial Highness Istvan von Habsburg-Lothringen, Archduke of Austria; its U.S. chapter launched in 1966 at the famous Bohemian Club.

E. (A) & (B) above

F. (C) & (D) above.
Continue reading

Posted in Law: The Supremes | Leave a comment

How Obama Can Get a SCOTUS Nominee Confirmed

Here’s the optimal strategy if the President’s goal is to get a nominee past an obstructionist Republican Senate: appoint a flaming liberal as a recess appointment Justice, and couple that with the nomination of a middle-of-the road Supreme Court nomination for the permanent seat on the Court.

For the next few days — and only for the next few days — President Obama (arguably) has the right to make a recess appointment to the Supreme Court. To the limited extent there is a tradition (the appointment of Justice Brandeis), the tradition is that if a recess appointment is made the President then nominates the same person for a lifetime appointment.

But that tradition has quite a lot working against it. For starters, it means at least temporarily one Justice not only lacks lifetime tenure, but has to make decisions either with an eye towards confirmation, or in the teeth of the cost to possible confirmation. In these polarized times, that is asking a lot. Plus there is a real danger that the Justice is not confirmed in the end.

Why not instead appoint a temporary Justice, someone old enough for it to be the capstone to a distinguished career, and then a different, younger, person for the permanent position. Make the temporary appointment someone very very liberal (Patrica Wald? Stephen Reinhardt?); make the permanent appointment someone more moderate. Since the confirmation of the permanent Justice immediately removes the recess appointment Justice from office, the sooner he or she is confirmed, the fewer decisions the more liberal appointee gets to vote on. Thus, a vote against the permanent appointment becomes a vote for keeping the more liberal Justice in office. Not only does it put the GOP in a bind, but it creates cover for voting for the Democratic nominee.

On balance, I’m not sure I like this strategy as it ends up with a middle-of-the-road Justice, but unlike most other things I can think of, it does have some chance of working. You heard it here first.

Posted in Law: The Supremes, Politics: US | 11 Comments

Justice Scalia Dies

Justice Scalia has died, a fact said to be confirmed by the Governor of Texas. Scalia was on a quail-hunting trip in Texas; although the reports say he died in his sleep.

While family and friends mourn, the rest of the world will be thinking of his successor and the political consequences of his absence. Supreme Court appointments in a lame-duck year of a Presidency are a difficult business; in the current climate it could be impossible unless President Obama finds someone of such stature that not to confirm him or her would be ridiculous. Even if such a person exists, it might be a heavy lift.

Most likely, the nomination will become part of the Presidential campaign, the visible stakes for which just went up a notch. Let’s at least hope that the candidates refrain from enunciating too many ‘litmus tests’ which could have the effect of opening the door for demands for recusal by anyone confirmed.

The gridlock in DC also raises the possibility that the 9th seat might be open for a long time. Certainly the political center of the court just shifted: even when Justice Kennedy votes with the conservatives, the result will be a 4-4 tie, affirming the lower court by an evenly divided court–a result that affirms the decision but does not set a national precedent.

In the short term, this new political balance may change the dynamics of the review of the EPA’s clean power plan: the 5-4 stay by the Supreme Court is no longer as strong a signal that an affirmance below would be reversal bait. On the other hand, less changes in US v. Texas (the immigration case), since there the lower court ruled against the administration’s actions in deferring deportations.

Posted in Law: The Supremes | 4 Comments

Purely Hypothetical Questions

Suppose that one became convinced that a member of the Supreme Court was a racist, or had a bias either in favor of a particular religion or against a particular religious view. Would any of these constitute grounds for impeachment and conviction?

Would your answer to this question turn on whether the views manifested in judicial opinions, or only in in-court colloquies, or only in out-of-court writing or speaking?

Posted in Law: Constitutional Law, Law: The Supremes | 2 Comments

John Roberts for President

He could be the savior the GOP Establishment is looking for.

One of the storylines in the current GOP Presidential campaign is that the party establishment has been looking for its candidate.  It was supposed to be Jeb!, he of the $100 million war chest, but he’s cratered. Meanwhile Trump and Carson sucked out the oxygen of the others.  Rubio is still in the tryout phase, and apparently the powers that be are not sure if he has the necessary gravitas, or even any at all.

Things are so bad that stories about the Establishment wanting to draft Romney keep popping up.  Romney polls well in New Hampshire. But I don’t think he’ll do well in the general election, for the same reasons Romney lost last time.

No, what the GOP needs is a fresh face.  Someone articulate.  With gravitas.  With no baggage.  And great conservative credentials.  Who is pro business.  Who won’t scare the horses.

And what better person could fit all those criteria than Chief Justice John Roberts?

Yes, a few die-hards may be angry that Roberts cast the deciding vote to keep ObamaCare alive, but many will forgive him after he guides the Court to strike down the remaining vestiges of affirmative action (Fisher v. University of Texas), to undermine labor unions by destroying their budgets (Friedrichs v. California Teachers Association), to kill Obama’s immigration policy (United States v. Texas (docket 15-674)), and to impose new restrictions on abortion (Whole Woman’s Health v. Cole). If all that that wasn’t enough, Roberts might even be able to say that as a Justice he had to apply the law on ObamaCare, but as President he’d work to repeal it.

Of course, the Chief would have to step down temporarily from the Court, but after he helped create a new Republican majority, surely Roberts’s GOP successor as President would appoint him to the first available opening.

Good thing that when the Chief Justice said recently that he would not run for President he did not take a Sherman.

Then again, Roberts is pretty smart. He may figure he has more power where he is.

Posted in 2016 Election, Law: The Supremes | 2 Comments