The "New and Improved" -- and make no mistake, just as activist -- Iowa Supreme Court

This week, Iowa Republican Governor Terry Branstad appointed three new members to the state Supreme Court.  From among the nine finalists, the governor selected two state judges and a private attorney.  All were white.  All were male. Notably, these justices are filling the seats vacated by the three justices who were not retained by the Iowa electorate after their controversial ruling on gay marriage.  

To my mind, the biggest question raised by these choices is the complete lack of judicial diversity on the Supreme Court, and what that foretells for the future of the state.  The message is also clear: judicial diversity leads to bad, activist rulings, and when that happens, we must go back to our roots.  To our white, male roots.  

Much can be said about the Governor's choices.  But the one thing that caught my eye was the governor's explanation for his choices: “My goal was to choose Supreme Court justices, from the available slate of candidates, who are most likely to faithfully interpret the laws and Constitution, and respect the separation of powers.” 

These words echo the words of former president George W. Bush, who promised to nominate judges who were "strict constructionists in the mold of Justices Rehnquist, Scalia, and Thomas." This was, is, and will always be a canard.  This is part of the general mythology to which we have grown accustomed.  What conservative judges do, we call strict constructionism, faithful legal interpretation, and respectful of separation of powers.  In a word, we call it restraint.  Liberal judges, on the other had, are leading us straight to the gates of hell.

This is all so silly yet so powerful at the same time.  If you were crafting a constitutional mythology, I don't think you could do it any better than this.  

From Wisconsin to the House, looking for the common good one public servant at a time

The U.S. House of Representatives, under the direction of Speaker Boehner, is looking to slash the deficit one amendment at a time.  Nothing appears to be sacred.  Unless it is.  The usual Repblican fabs are there, from NPR to PBS and Planned Parenthood.  There are also new targets, such as a park in Nancy Pelosi's district.  

Far more interesting is what's not in there.  One of the most curious, and the topic of Gail Collins' column this morning, is the Army's sponsorship of a NASCAR racing team.  In tough economic times, it is a fair question to ask why the Army should be funding a NASCAR team.  Here's the answer, from driver Ryan Newman: "In a 2009 study among fans nationwide, 37% feel more positive about the Army due to its involvement in motorsports."

Make what you want of the sponsorship, the better point lies elsewhere.  When a Democratic representative sought to eliminate the sponsorship, her amendment was defeated soundly, and led a Republican representative to opine, “[t]his amendment is about politics in certain districts for certain groups of people.” 

This is what good, austere government looks like?

But that alone is not what caught my attention this morning.  Hypocrisy lies everywhere and is hardly news anymore.  Within minutes, and in reference to the Wisconsin debate over its budget, here's the lessons of that debate, from James Sherk, a fellow at the Heritage Foundation: "As a result [of the growth of collective bargaining in government] unions can now insist on laws that serve their interests – at the expense of the common good."

This is a remarkable assertion.  Pushed to its logical extreme, it may be said that collective bargaining  is what got us into the economic mess we find ourselves today.  Not bankers, or Wall Street risk-taking, or just plain greed. Unions.  And what will get us out of this recession?  The answer is obvious.  Busting the unions.  

The remarkable thing is not that conservatives say the things they say.  I get that.  The far more remarkable point is that there is somebody at the other end listening and nodding in agreement.  

Can we consider Justice Thomas anything other than a judicial activist?

In yesterday's "Room for Debate," four distinguished contributors discussed whether "Justice Thomas's silence matters." I was reading the four entries fully intending to respond to them as a whole, until one particular passage from Jamal Greene's entry caught my eye.  Here is what he wrote:

He is a judicial iconoclast, opposed to following constitutional precedents with which he disagrees and unwilling to moderate his positions to achieve consensus. He is the court’s most frequent lone dissenter, and to assign an important majority opinion to him is to risk losing your majority because of his uncompromising language.

When you read this, you might be reminded of the conservative critique leveled at Justice Marshall.  We saw it most recently during the Kagan confirmation hearings, when Republican Senators tried to pin the activist label on Kagan simply because she had clerked for Marshall.  The critique is clearly wrong. But that hardly matters.  To the Republicans on the committee, Marshall was a "well-known activist" (Sen. Sessions); "a judicial activist" with a "judicial philosophy that concerns me" (Sen Cornyn); and a judge with a legal view that  "does not comport with the proper role of a judge or judicial method."(Sen. Grassley).  When pressed for evidence of this activism, the Senators can only offer his insistence on dissenting from death penalty cases.  

Anyone who has thought about judicial activism at all will soon find that the concept is often used as a term of opprobrium, to signal substantive disagreement with a judge's positions.  In essence, a judicial activist is a judge who disagrees with us.  That is human nature, I suppose. What does seem clear from the critique of Justice Marshall, however, is that under any available metric, and particularly the metrics used by conservative critics, Justice Thomas no less a judicial activist than Justice Marshall might have been.

Why does any of this matter?  Because Justice Thomas, along with Justice Scalia, are the two model justices for conservatives.  We must understand that this is a canard, part and parcel of the mythology that surrounds the courts.   Labelling Justice Thomas a model justice is part of a political strategy, not a serious argument.

The Latest on Justice Thomas

This is beginning to sound like a daily occurrence: in his financial disclosures, Justice Thomas reports that the Federalist Society reimbursed him for “transportation, meals and accommodations” for four days at a weekend retreat.  This is for an event organized by Charles and David Koch, the billionaire brothers "who are waging a war against Obama."  Last month, however, a spokesman for the Court offers that the Justice had only made a "brief drop-by" at the event, which included a speech.  The advocacy group Common Cause sent a letter to the Court this week asking for "further clarification."

You can take this latest episode one of two ways: either liberal groups are on a witch hunt (a high-tech lynching, perhaps?) against Justice Thomas; or else Justice Thomas is more tone-deaf and irresponsible than a justice deserves to be.  Judicial independence will do that to a guy. 

Biased as I may be, I am inclined to view as cluelessness on the justice's part, perhaps hubris.  He is a supreme court justice.  We are not.  And if he wants to give a speech and then sit in any case he wishes to sit on, that is not your problem.

Here's the real question: how much will be enough?

Did he really say that? Charles Fried on the Health Care Bill

You think you know a guy, until it comes out that you really don't.  Here's Charles Fried, former Reagan administration solicitor general and professor of law at Harvard, on the health care bill: "I'm not sure it's good policy. I'm not sure it's going to make the country any better . . . But I am quite sure the health-care mandate is constitutional."  Professor Fried defended the constitutionality of the law during a Senate hearing a few weeks back.  (His testimony can be found here).

Two quick thoughts: First, I wonder whether those bloggers all bent out if shape about Tribe's and Amar's defense are similarly bent over this one.  I cannot say I have seen it, though I must also say that I have not looked very hard. 

Second, and for all of his careful analysis, note the one factor that Fried ultimately thinks will decide the case.  In his words, he argues that the political climate at the time of the decision will be the "wildcard."  More specifically, "How much of the political bug will these people get bitten by, and how strong will their immunity be?"

How refreshing.  

What happens when a Supreme Court justice fails to comply with the law?

Here's a curious story.  74 members of Congress wrote Justice Thomas a letter asking him to recuse himself from any upcoming health care case because his wife is a self-appointed “ambassador to the Tea Party movement.”  Justice Thomas also failed to report in his financial disclosure forms, as required by law, income that his wife received from the Heritage Foundation.  We are talking a big chunk of change, around $680,000.

At first glance, one is inclined to catalogue this under similar attacks from liberal quarters at Justice Thomas.  But this letter has a different quality to it.  How could a federal judge forget to comply with federal law in this way? 

So I wonder: what are the chances of recusal?  I'd wager between zero next and none.  But the better question is, what happens to a sitting justice when he fails to comply with federal law?  I suspect we already know the answer: probably nothing. But the better question is why.  Is it because judicial independence demands it?  Or is it because we understand the justices for what they are, human beings with political connections, and this is nothing that ought to disturb anybody?  Or is it something else entirely?

On Justice Thomas' silence . . . and a journalist's odd choice

In Sunday’s New York Times – on its front page, no less – we find an article by Adam Liptak about Justice Thomas and his reticent to speak from the bench. Anyone familiar with the Court will not be surprised by this story. In fact, they will be surprised that the story was published by the Times in the first place, and on the front page to boot. 

This is not to say that the story is not interesting in its own right and worth reading. But not for the reasons you might think. 

For one, it may well be the case that Justice Thomas is really not that interesting, or a deep thinker. Why assume that he – or any other justice -- is? Why assume that mere mortals are transformed into philosopher kings simply by virtue of donning a judicial robe? 

Something else entirely caught my eye. Later in the article, Liptak quotes from a piece in the Florida Law Review by a third year law student. Two things about this choice on Liptak’s part raises eyebrows. The first is the fact that he chose to publish a piece from the Florida Law Review, hardly considered a leading review by those who have nothing better to do than to rank these things. The second is that the author is a law student, and not some major eminence in the field of law. It must be the case, then, that whatever this student wrote is simply brilliant, the kind of thing that Liptak could only get from this piece and nowhere else. But that is not quite so. The quote is not that insightful: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . . Litigants could then counter it, or try to do so. It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” 

So why is Liptak quoting from this obscure piece? All that makes sense is that the author is David Karp, described by Liptak as a “veteran journalist.” This might mean – and this is the only way that any of this makes any sense – that Liptak and Karp are friends, acquaintances, or something along those lines. Liptak is essentially doing a friend a favor. For make no mistake, to get quoted in a Times piece is a much bigger deal in the law schools than it deserves to be. Go to a random law school website and tell me what you find: right in the front, law schools love to advertise how their professors are quoted and cited across the globe. I find the practice quite embarrassing, for it is clear that getting cited or quoted is more a reflection of the size and quality of one’s rolodex than of whatever it is one is saying. (If anybody out there ever finds a quote that is not a reflection of one's standing and networks rather than the worth of the quote itself, please pass it along; I have yet to see one).

Justice Thomas is not about to start speaking – he does not appear to have it in him – and the law schools are not about to stop advertising every breath one of their professor takes that is noted in print. 

Who do they think they are kidding?