This Post Will Not Contain Any References To Coke Or Porn…

…because I am a classy lady.

So, in case you haven’t heard, Virginia Thomas, wife of SCOTUS Justice Clarence Thomas, is indeed hopping on the tea party train. She has started a group called  Liberty Central Inc. Liberty Central is reportedly a nonprofit lobbying group created for the purpose of organizing activism around a set of conservative “core principals.” You can read more about this story here at the LA Times.

Now, politics aside (if such a thing is possible), I don’t have any particular dislike for Justice Thomas. And certainly a SCOTUS justice is FAR FAR more qualified to opine on just about anything than am I.  That said, I do think it incredibly disingenuous to constantly deride the more progressive side of the court for engaging in judicial activism, when the originafederalists are doing exactly the same thing.

ALL judges engage in judicial activism; if they aren’t, then they are not doing their job. As I see it, every decent judge has or should have some sort of articulable judicial philosophy. And every judge, through experience, gains insight on the law not reflected in the letter of the law. Simply put – if a judge is actually judging, there is no way that he or she will not necessarily engage in what is referred to as judicial activism.

Of all the Justices, I always wish that Thomas would get out and about more. He is so, well, quiet. And when he does speak, he is articulate and drily humorous. I know conservatives generally expect all liberals, progressives, and non-fundies to be filled with foamy hate at the mere thought of anyone with whom they disagree. While I am not filled with joy by the concept of “originalist” or “federalist” constitutional interpretation, I don’t think that it necessarily follows that I must also dislike a person who follows such an approach. Unlike a pundit or other such vile creature who makes a living off of being an obnoxious persona, I think arbiters of thought can and do exist as people distinct from their philosophies.

Take, for example, the awesome relationship between RBG and Scalia. Shit, if they can get together and share an elephant, then there should be hope for us all. Sometimes agreeable people simply disagree – certainly when it comes to academic matters that do not directly affect either party on a personal level.

But I think it is the latter part of that statement – that the argument cannot focus on things that personally impact the speakers – that is the key to understanding why there is so much animosity coming both from and towards teabaggers. If they were simply out to discuss Constitutional matters, as they often claim to be doing, then I would think reasoned discourse would be possible. However, when the Constitutional matters are either a veneer or a side item to other more personal matters, dialogue is not really possible.  I have no desire to engage in a Constitutional debate with someone waiving a sign declaring Obama is a Muslin [sic].  Conversely, they are not going to believe anything I say because I am a liberal and therefore have a liberal agenda.

Likewise, the healthcare debate has become too internalized to be rationally discussed. Everyone comes to that table with their mind made up. I, for one, am tired of the talking points. I am tired of hearing people going on and on about 10th Amendment this, or socialism that when most of the time, they have no fucking idea what they are talking about. Quit acting smart and just SAY WHAT YOU MEAN.

I think we should have a single-payer system. I believe the Constitution grants Congress the authority to enact such a system. More importantly, I think that in a capitalist society, the Government has a duty to act to preserve and protect the interests of the Citizenry from Corporations. Especially where, as here, it is undeniably clear that our quasi-free market is allowing Corporations to profit to the gross injury of the majority of the citizenry.

If you think otherwise, fine. But don’t give me some bullshit argument that you heard from Glenn Beck. Tell me why YOU think it is wrong for our government to restrict the healthcare industry in order to protect the citizens. Tell me why YOU don’t want our taxes going to the welfare of the general public health – specifically why we draw the line at healthcare.  Tell me how YOU think things are going to get any better if we don’t do something to fix them – or tell me why you think they are just fine.

In the meantime, I am going to go make some tea and leave you to gaze upon some freshly baked bread…

French Bread

Cali-Watch, Part 2

You know, I had a feeling SCOTUS wouldn’t allow the streaming of the Perry v. Schwarzenegger oral arguments. I write ‘had a feeling,’ but I STILL kind of thought they would allow it, since they would have had to work a little hard to invalidate the original ruling. Turns out, my feeling was right and the hard work was put in.

Yesterday SCOTUS entered a preliminary order blocking the broadcasting of the arguments on YouTube. You can read the full PC opinion over here and a better eval than I could ever give on the opinion here at scotusblog.com.

I think this ruling is bad. Obviously and admittedly I have at least three agendas at play here. First, I believe in unrestricted access to governmental process (government in the sunshine and all that), especially where, as here, access would not have come to the inconvenience or detriment of any of the parties. Can’t really “embarrass” the state like you can an individual citizen. And second, I am pro gay marriage, believe it to be a basic human/cultural/social right, and also believe it to be a right inherently extended to all US citizens, thus subject to protections of the Constitution. And third, I do not think the government has ANY business regulating what are inherently private matters among consenting adults.

Now, to the opinion. Why is it bad? Because it looks like a political move. And let me clarify that I don’t mean a judicial agenda. I would expect that all Judges and Justices have a judicial agenda – i.e., an approach that defines how they approach the law and a goal for the legacy they wish to leave behind. No, what I mean by ‘political moves’ are when the actions seem motivated by an attempt to reach out and shape the issues before they are actually in front of you or to take jurisdiction over issues that you normally wouldn’t touch. Don’t get me wrong, this is something that goes on regardless of philosophy.

And really? Rather than a political move, it could be a simple prophylactic measure, as there has been a bit of a hubbub about courts NOT wanting video broadcasts to become the way of the court. But still…

First, higher courts don’t generally tell lower courts how to decorate their offices, so to speak. Each court, whether state or federal, is almost certain to have its own local rules, which basically cover anything non-substantive that isn’t covered by the fed/state rules of procedure. Things like what documents need to be filed in summary judgment motions and how/when counsel may approach the bench, what counsel may wear (for real, many local court still had skirt reqs on the books for the ladies until very recently – if you know of some that still do, let me know), how cases may be set, etc. To use their “supervisory power” in a situation such as this one is unprecedented.

Lower courts typically are not a consortium-type setting – meaning that unlike appellate court, there is no panel and each judge has his/her own courtroom, personnel, and ground rules. And perhaps it is a show of respect or just a recognition that these rules have no bearing outside of the individual judge’s courtroom, but the higher courts don’t generally poke their noses in where the rules have absolutely no substantive impact on the citizenry. And since this trial is open to the public AND being heavily covered by the media, I don’t see how testimony integrity or chilling effect is a valid concern.

Cali-Watch…

Professor DAVID LEVINE (U.C. Hastings College of Law): “This is like going to Disneyland for legal scholars.”  NPR

Oral arguments opened today in the federal court challenge to California’s gay marriage ban. This is the first federal question challenge to the validity of gay marriage bans. So yeah, this is pretty big, as this one is expected to wend its way to SCOTUS. Last week, I was pretty excited to read that US District Judge Vaughn Walker was going to allow the arguments to be streamed. But alas, SCOTUS has since decided that whether or not the arguments can be streamed is its decision. Which it hasn’t given us yet, but promises to have by Wednesday. So, until then, we have just the retelling by various news sources.

How nerdy is it that I thought of those links as spoilers?

[EDIT: UPDATE – SCOTUS has weighed in on the YouTube issue; new post up here]

Now granted, not everyone is a con law nerd. But this case really REALLY has a lot of interesting issues. And I would have expected that the opening arguments would have been exceptionally stellar. AND would have given us a roadmap on how the two sides to this issue intend to lay their respective Constitutional groundwork.

And people – oral arguments are so cool. No really. In my opinion, it is the most exciting part of the process. I think that most people think that the only “exciting” lawyering is trial level work, and that, generally speaking, “trial work” means harassing witnesses, ‘gotcha’ moments, strange rhyme schemes, etc. But this, in my opinion, isn’t the best part. Generally speaking, at a trial court level, people will try to win over the judge on questions of law and the finder of fact (whether it is a jury or the judge sitting as fact-finder) on questions of fact. I have notice that most tv shows portray trials as mostly questions of fact, where the law questions are resolved via tense motions and in camera arguments. I don’t know – maybe it actually is that way in criminal work, which would seem to involve more questions of admissibility, but in civil cases it doesn’t really work that way. I think a lot of how civil cases are handled depends on your jurisdiction’s approach to summary judgment proceedings – but that is a discussion for another day.

My point, which I lost somewhere, was that oral arguments are really where you can see a lawyer work. And while they certainly are “exciting” at a trial level, I am going to try to take this opportunity to sell you on the joy and sexiness of appellate work. Trial work can be very interesting, but nowhere near the jurisprudential ironman challenge that is appellate work. Imagine a trial – just like what you see on your average lawyer show. Now take away the jury, the parties, the police officers, the witnesses, the evidence, and the criminals and you’ve got appellate lawyering! What, I ask you, is more exciting that a room empty of everything but lawyers, judges, and clerks?

NOTHING. NOTHING is more exciting. Appellate arguments are legal discourse in its pure, distilled form. Like that blue stuff that the Bene Gesserits drink in Dune.

If you would like to hear some SCOTUS orals, you can peruse some of the “classics” at www.oyez.org.