A Stitch in Haste

The Chief Justice has issued his annual Year-End Report on the Federal Judiciary, and has a message for his conservative counterparts in the Executive and Legislative Departments:

U.S. Chief Justice William Rehnquist expressed concern on Saturday that criticism of federal judges had increased in recent years, particularly for "judicial activism."

"Criticism of judges has dramatically increased in recent years, exacerbating in some respects the strained relationship between the Congress and the federal judiciary," he said in his 2004 Year-End Report on the Federal Judiciary.

"Although arguments over the federal judiciary have always been with us, criticism of judges, including charges of activism, have in the eyes of some taken a new turn in recent years," said Rehnquist, who has been absent from the Supreme Court since he was diagnosed with thyroid cancer in October.

As I have blogged previously, the use of the term "activist judges" by President Bush and other "conservatives" is the most pathetic form of empty pandering to the ignoranti of their "base." What's more, it's blatantly hypocritical -- are judges being "activist" when they decide in favor of Republicans (whether real or imagined)?

No one ever said it better:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

--Chief Justice John Marshall, Marbury v. Madison, 5 US 137 (1803)

Stated differently: many Americans, especially conservatives, seem all too eager to forget that "separation of powers" also means, or used to mean, co-equal branches of government. To disagree with a court ruling, or even with a jurisprudential philosophy, is one thing; accusing the judiciary of "abusing" their positions when in reality they are simply performing their most basic judicial function is political blasphemy. And the politicians know it.

Hopefully the electorate will start to realize it too.

NOTE: The 2004 Year-End Report is not yet now available online.

Related Posts:
What's the Matter with (Statutory Rape in) Kansas?
Supreme Court Turns Away Massachusetts Gay Marriage Challenge
How to Read the Constitution

Well I'm very late to the party regarding Justice O'Connor's announced intention to resign (which not the same as "her resignation" — more on that below).

As I like to say, I'm a political blogger, not a politics blogger, so much of this may be of little value. But here are some hasty stitches:

--I think people are very much underestimating the pressure to nominate a woman, Justice Ginsburg notwithstanding. For right or for wrong there had long been an unofficial "Jewish seat" on the Court and now of course there's a "black seat." I'm not saying it will happen, I'm just saying the pressure will be there. It will be interesting to see what role, if any, the four female Republican Senators, none of whom tend to be ultra-conservative, play in this (keep an eye especially on the increasingly important Kay Bailey Hutchison of Texas).

--Which of course raises the question of Judge Janice Rogers Brown. On the one hand, she was just confirmed to a Circuit Court position. On the other hand, she was just confirmed to a Circuit Court position. What I of course mean by that is that, while she was clearly confirmable (thanks to the Gang of Fourteen), others might charge that she is being elevated too quickly. On the other other hand, she was a state supreme court justice (California), so she does have appellate experience. (Compare: David Souter was nominated from a state supreme court to the Circuit Court, and served only five months before being elevated to the Supreme Court.)

--I wonder whether this turn of events changes the calculus of a potential Chief Justice Thomas. My longstanding thesis has been that, had Chief Justice Rehnquist retired first, then President Bush would look outside the Court for a replacement, since to elevate Thomas would simply mean two confirmation hearings to fill one vacancy. But with Justice O'Connor leaving first, perhaps some sort of back-room compromise can be struck where Bush nominates a moderate to replace both O'Connor and then Thomas' vacancy in exchange for allowing Thomas to quietly step up to Chief Justice. Might be too convoluted, but stranger things have happened.

--His indefensible McCreary dissent forever rules out Scalia for Chief Justice. Just thought I'd throw that in there.

--Someone suggested, I forget where, that O'Connor's resignation letter is actually unconstitutional because it strips the President of his power to make a recess appointment (the letter states that she will not resign until her replacement is confirmed by the Senate). I know we libertarians sometimes try to find unconstitutionality under every rock and behind every political maneuver, but as far as I can tell, it's her party and she can "bye" when she wants to.

Now don't you all feel silly? (WSJ - $)

Chief Justice William H. Rehnquist, denying rumors of his retirement, said Thursday he will continue heading the court as long his health permits. "I'm not about to announce my retirement," he said.

"I want to put to rest the speculation and unfounded rumors of my imminent retirement," Chief Justice Rehnquist, 80 years old, and ailing with thyroid cancer, said in a statement obtained by The Associated Press. "I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits."

Now go read a casebook or something.

"I am opposed to the ERA because it will accomplish nothing except to give a lot of bad female politicians a tool to work with."
--Ayn Rand

I blogged the following back when Associate Justice Sandra Day O'Connor announced her intended retirement:

It will be interesting to see what role, if any, the four female Republican Senators, none of whom tend to be ultra-conservative, play in this...

Well, this was not exactly what I had in mind:

Four female senators called Thursday for retiring Supreme Court Justice Sandra Day O'Connor to stay on the court and try for chief justice if the ailing William Rehnquist steps down.

In a letter to O'Connor, Republicans Olympia Snowe and Susan Collins of Maine and Democrats Mary Landrieu of Louisiana and Barbara Boxer of California asked the nation's first female justice to consider staying on the high court if Chief Justice Rehnquist relinquishes the top spot.
...
"We urge you to reconsider your resignation and return to the Supreme Court to serve as chief justice, should there be a vacancy," the senators said in the Thursday letter.

This is just plain stupid, and shame on the four senators for their petty gender-based politics.

Some hasty stitches:

--Why are people so unwilling to take O'Connor at her word that her motivation in retiring is her ailing husband? I dare any of these four grandstanding politicians to state, publicly and for the record, that if their husbands became extremely ill, then they would not only unconditionally continue serving in the Senate but would also eagerly accept additional leadership responsibilities, such as a key committee chair. If that makes no sense in the Senate, then it makes no sense in the Supreme Court.

--The politics of a Rehnquist vacancy haven't fundamentally changed in my opinion. I stand by my prediction right after the election with respect to Clarence Thomas: President Bush will not elevate an Associate Justice to Chief Justice in the current political climate, since that would require two confirmation battles to fill a single seat. That makes no sense.

--Now is as good a time as any to remind ourselves exactly what it means to be Chief Justice of the Supreme Court of the United States:

By statute, the Chief Justice presides over the Judicial Conference (28 U.S.C. § 331), selects the director and deputy director of the Administrative Office (28 U.S.C. § 601), chairs the Board of the Federal Judicial Center (28 U.S.C. § 621(a)(1)), designates judges to serve on the Judicial Panel for Multidistrict Litigation (28 U.S.C. § 1407 (d)) and on the Foreign Intelligence Surveillance Court (50 U.S.C. § 1803 (a)), and assigns district and circuit judges to serve temporarily in circuits other than their own (28 U.S.C. §§ 291–292). These statutory duties give rise to other responsibilities: The Chief Justice serves as the federal judiciary’s ultimate advocate and spokesperson with respect to legislation affecting administration of the federal courts—a duty that has become routine since William Howard Taft served as Chief Justice (1921–1930). The Chief Justice also appoints the some 200 members of the extensive committee system of the Judicial Conference.

Who would in good conscience and with a straight face ask Justice O'Connor to suffer such bureaucratic burdens under her current circumstances?

--Oh, and by the way, there is no Rehnquist vacancy yet!

I say again: shame on these four petty, grandstanding, hack politicians for playing the gender card.

UPDATE: Here's an New York Times op-ed, which I neither endorse nor reject, discussing the administrative responsibilities of the Chief Justice.

President Bush will announce his nominee to replace retiring Associate Justice Sandra Day O'Connor tonight at 9PM ET.

I was wise enough to sidestep the whole Rehnquist retirement rumormongering last week, but in light of the increasing speculation that President Bush will nominate Judge Edith Brown Clement of the Fifth U.S. Circuit Court of Appeals, I'll remind readers of what I blogged when O'Connor first announced her intention to retire:

I think people are very much underestimating the pressure to nominate a woman, Justice Ginsburg notwithstanding. For right or for wrong there had long been an unofficial "Jewish seat" on the Court and now of course there's a "black seat." I'm not saying it will happen, I'm just saying the pressure will be there.

Stay tuned...

UPDATE: Or maybe not.

Very quick thoughts:

--No replacement can possibly be confirmed before the First Monday in October. Unless I'm mistaken, that means we will now be dealing with Acting Chief Justice Stevens.

--Expect no nomination by the President until after John Roberts has been confirmed.

--I stick to my early prediction that the President will NOT nominate either Justice Scalia or Justice Thomas. I have no idea who will be nominated, but I wonder whether he might look from within the Senate to ease the confirmation process. Chief Justice Hatch anyone?

So sayeth he on Fox News, circa 12:50am New York time.

He also described Rehnquist as "the most activist judge in history," which Dershowitz measures in terms of laws he voted to strike down.

Considering a law to be unconstitutional is not judicial activism, but judicial review. And while the latter is indeed under attack via some conservatives' newfound fetish for unbridled majoritarianism (i.e., mob rule), it is counterproductive for Dershowitz to confuse the issue in such a manner.

I previously noted Chief Justice Rehnquist's view on the "judicial activism" canard.

UPDATE: Objective Justice has the transcript.

Widely-hypothesized potential Supreme Court nominee Edith Clement is from New Orleans.

I'm just saying...

POST SCRIPT: She's also a woman.

I'm just saying...

Senate Democrats are suggesting that they might invoke their prerogative under Senate rules to delay the confirmation hearings for Judge Samuel Alito's nomination to the Supreme Court.

Although not going quite so far publicly (yet), the groundwork is being laid to make the warrantless wiretapping scandal a litmus test for Alito, who has defended expansive interpretations of executive power in the past.

In other words: "Renounce the NSA program or you will be filibustered."

Whatever. I suppose that's (marginally) better than making abortion a litmus test.

I actually have an altogether different point to make: I don't follow those online fantasy futures markets at all, but I wonder whether there's any "trading" in the potential that Justice Sandra Day O'Connor is going to say "enough is enough" and just quit.

As a reminder, she had promised to remain on the Court until her replacement was confirmed. That was three nominations ago:

--Roberts: "Too good for your slot."
--Miers: "Not good enough for your slot."
--Alito: "We'll get back to you."

Also as a reminder, the primary reason for her retirement was her desire to care for her husband, who has Alzheimer's.

Enough is enough.

I leave to others the analysis of a potential eight-member Supreme Court. My point is merely that Justice O'Connor is certainly entitled to change her mind, and with each new delay she should certainly consider doing so.