the-judiciary

With Focus on Supreme Court, Will Ethics be Tightened?

Scalia during a 2006 event sponsored by the Federalist Society and the American Constitution Society. (CQ Photo by Scott J. Ferrell)

The death of Justice Antonin Scalia, during one of his many trips far from the capital and underwritten by outsiders, has revived some interest in Supreme Court ethics.  

But as with so many of the issues Congress could decide to take on, only a relatively small number of lawmakers are talking seriously about legislation. And within that group, the Democrats and Republicans have totally different approaches for regulating the court’s behavioral standards. So the status quo is highly likely to hold fast this election year, and may well outlast a fight over filling the open seat on the court that’s looking likely to stretch into 2017. When Scalia died in February, he was on a hunting trip as the guest of Houston businessman John Poindexter, who owns a company that was the successful defendant in an age discrimination suit the high court decided against reopening just last year.  

Senate and Obama's Final Round Over Judges

Tennessee's two GOP senators, Lamar Alexander, left and Bob Corker have signed off on Crenshaw's nomination, but the nomination is still stalled. (Chris Maddaloni/CQ Roll Call File Photo)

To predict how the judicial wars between this Republican Senate and President Barack Obama will end, keep an eye on labor lawyer Waverly Crenshaw Jr.  

A quarter-century ago, he was the first African-American hired at one of Nashville’s most prominent law firms. Ten months ago, he was chosen for the opening on the local federal trial court. Five months ago, with the blessing of both of Tennessee’s Republican senators, he was endorsed without a dissenting voice in the Senate Judiciary Committee. And since then ... nothing, except that as of last week the judgeship had been vacant a full year, and the backlog of cases has grown such that court administrators have declared a “judicial emergency.” Yet there is a decent chance Congress will go home for the year without acting on him or any of the dozen others whose nominations have advanced just as far. That would be a signal the process of confirming judges, already at its slowest pace in more than half a century, is grinding to a halt earlier than ever in the life cycle of a modern two-term president.  

House Conservative Favorite Eyes Unusual Career Switch

(Tom Williams/CQ Roll Call File Photo)

The path from the legislative to the executive branch is as well-worn as usual, with five senators and a former senator now hoping to succeed another onetime senator as president and 15 former members joining the Cabinets of the Obama and George Bush administrations.  

The route between the legislative and judicial branches, by contrast, is as weeded-over as it’s ever been. No one has gone from Congress to the federal bench in 30 years, and the last Supreme Court justice with any congressional experience retired in 1971.  

New Congress, New Round in Senate Fight Over Obama’s Judges
 

Toomey says he supports Restrepo, but has held off officially signing off on the judge's nomination. (Bill Clark/CQ Roll Call File Photo)

In the long-running judicial wars between the Senate and the White House, the first skirmish of the year is flaring into the open this week.  

How it plays out will offer insight about whether the new Republican majority plans to continue making the federal bench a venue for venting displeasure with President Barack Obama, or whether he’ll be allowed to refashion the courts a bit more during his final two years in office. The locus of the new fight is L. Felipe Restrepo, chosen by the president six months ago for the U.S. Court of Appeals for the Third Circuit. He’s the only person Obama has picked for eight current vacancies on the regional appeals courts. The seat has been open for 18 months, and as a result, the caseload recently became so backlogged that the Administrative Office of the U.S. Courts declared a “judicial emergency” for appeals out of Pennsylvania, New Jersey and Delaware.  

Nuclear Option Helped Obama Refashion Bench

(Bill Clark/CQ Roll Call)

Ten months after his fellow Democrats “went nuclear” in the Senate on his behalf, President Barack Obama is done putting his stamp on the federal judiciary — at least for the year, but maybe forever if Republicans take control of the place.  

Majority Leader Harry Reid’s decision to exercise the so-called nuclear option , which he and his predecessors from both parties had threatened for more than a decade, created the biggest change in the congressional rules since the 1970s. Taking away the filibuster as a weapon for defeating nominees has given Obama nearly free rein this year in populating his own administration and the regulatory agencies.  

'Lying in Politics' Plaintiffs Go on Offense in Several New States

The lead plaintiff in the “Can you lie in politics?” case going before the Supreme Court next week , anti-abortion group Susan B. Anthony List, says Ohio’s law against false campaign assertions will stifle that state’s midterm congressional debates.  

The group is apparently not worried about a similarly chilling effect elsewhere – at least not in four races elsewhere in the country where it’s inserted itself in recent days.  

Can You Lie in Politics? Supreme Court Will Decide

The Supreme Court will consider a case about lying in politics, revisiting a fight from Chabot's 2010 campaign in Ohio. (Bill Clark/CQ Roll Call File Photo)

The Supreme Court has made pretty clear that putting your money where your mouth is deserves broad protection as a form of free political speech. The justices are about to consider whether outright lying in a campaign deserves a similar First Amendment shield.  

The court’s recent decisions easing the flow of generous campaign contributions  already shifted the electoral landscape. If the court finds that even the most patently outrageous statements about candidates may not be barred by law, those two decisions combined could expand the rhetorical battlefield of the midterm elections and raise the attack ad volume as never before.  

A Landmark Election Ruling, Made by Justices With Minimal Campaign Involvement

The scene at the Supreme Court as justices heard oral arguments in McCutcheon vs. FEC. (Bill Clark/CQ Roll Call File Photo)

One way of looking at the latest Supreme Court decision speeding the flow of big money into elections — a ruling destined to have a bigger impact on the culture of Congress than anything that happens at the Capitol this year — is that one side’s definition of political reality narrowly prevailed over the other.  

Scenarios about the corrupting potential of so many more millions going to candidates, Chief Justice John G. Roberts Jr. asserted in the controlling opinion, “are either illegal under current campaign finance laws or divorced from reality.”  

A Balance of Powers Case With Senate GOP Power in the Balance

One of the biggest congressional stories of the decade starts unfolding Monday — not at the Capitol, but across the street.

The Supreme Court will hear arguments in an epic balance of powers battle between the other two branches, one that’s been waiting to happen since George Washington’s time. During the hour, the justices may or may not signal clearly whether they’re going to permit the continued expansive use of the president’s recess appointment authority — or seriously limit its use for the first time.

A Filibuster Holiday? Christmas Comes Early for Obama in the Senate

Seven skirmishes in the Senate confirmation wars are being fought more or less simultaneously this week.

By the time these tussles conclude — after a series of test votes that could stretch into next week — there’s a decent chance President Barack Obama and his Democratic front men will have emerged undefeated, or nearly so.