Roe -v- Wade critic
Judge William Pryor

The checks and balances of our unique style of Democracy are on display in the federal judiciary where the judges are appointed by the Chief Executive with the advice and consent of the Senate. At the highest level, the POTUS, the SCOTUS, and the U.S. Senate interact in a tightly-choreographed political chess match.

For nearly a year, Justice Antonin Scalia's seat on the SCOTUS has remained vacant since his death. President Obama, having nominated federal appeals court judge Merrick Garland, was already a lame duck and could not get the Senate to provide the advice and consent required by the U. S. Constitution.

During his first week in office, President Trump has reportedly narrowed the field to three nominees -all federal appellate jurists appointed to the bench by President George Bush- and is expected to announce his nominee as early as this week:

• Thomas Hardiman - 3rd Circuit Court of Appeals Judge, University of Notre Dame and Georgetown University Law Center graduate, appointed to the federal bench by President Bush in 2007 at the age of 31; 
• William Pryor - 11th Circuit Court of Appeals Judge, Northeast Louisiana University and Tulane University Law School graduate, appointed to the federal bench in 2006; and 
• Neil Gorsuch - 10th Circuit Court of Appeals Judge, Harvard Law School graduate with experience clerking for two SCOTUS justices [Kennedy and White], also appointed to the bench in 2006.

All three nominees have solid conservative bona fides, yet with a few interesting outliers among their jurisprudence. For example, Judge Hardiman once wrote an opinion reversing summary judgment in favor of an employee's "gender stereotyping" case against his employer [the plaintiff is a transgender woman], ruling that the disgruntled employee's suit could proceed. Another key example is when Judge Pryor -Alabama's Attorney General at the time- removed Chief Justice Roy Moore for his refusal to remove a plaque of the 10 Commandments from his courtroom.

Over their respective careers on the federal appellate bench, all three jurists have come down mostly on the side of the state in death penalty cases and on immigration issues. Judge Pryor has left no doubt where he stands on abortion, calling Roe -v- Wade, "the worst abomination in the history of constitutional law."

For his part, Judge Gorsuch may be the most natural replacement for the irreplaceable Justice Scalia. In his legal writings and scholarship, Gorsuch has exhibited incisive conservative legal analysis combined with a flair for conveying that analysis in a legal opinion. SCOTUSBlog characterizes his opinions as, "exceptionally clear and routinely entertaining." Very rare for an appellate decision.

Although he has not addressed major abortion cases as a sitting judge, Gorsuch's jurisprudence includes several high-profile cases involving the freedom of religion clauses of the Constitution. One was the Hobby Lobby case which challenged the "contraception mandate" of the Affordable Care Act; Judge Gorsuch wrote a concurring opinion in the en banc rehearing that sided with the company and the decision was largely vindicated by the subsequent SCOTUS opinion.

Considering the importance of the SCOTUS functioning with a full compliment of justices, and considering how important it is for conservatives [President Trump arguably not among them] to replace a conservative jurist with a like-minded jurist, we here at the Law Blogger are looking for a SCOTUS nomination this week.

History tells us, however, that not every federal judicial nominee adheres to the script upon which he or she was appointed. Presidents Nixon, Reagan and Clinton have all been burned.

Post #575

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Ruth Bader Ginsburg in 1953

By: Timothy P. Flynn

Three years ago, when sworn into the SCOTUS Bar in Washington, D.C., I was lucky enough to get a seat toward the front of the Court's chamber to observe the nine Justices, all still on the court today, up-close and personal. Literally, to the far left on the bench was a diminutive woman; Justice Ruth Bader Ginsburg.

Appointed in 1993 under President Clinton, Justice Ginsburg just recently turned 80. When I saw her listen as the High Court's newest opinions were read to the gathered public a few years ago, she was slouched over in her big black leather chair as if asleep.  Later in the session, I realized she was listening closely and taking notes.

At 80, Justice Ginsburg is sharp, on her game, and regularly in the legal news.  Physically, while she admitted wistfully to the New York Times that her "water-skiing" days are over, she is a  proud survivor of cancer [twice] who has maintained a clean bill of health from the National Institute of Health; the NIH tracks her soundness very closely.

SCOTUS retirement politics runs in cycles across the decades, as Justices age and retire or, rarely, die on the bench like Justice William Rehnquist in 2005.  In the late 1990s, for example, rumors circulated every fall about the health of Justice William Brennan, Jr. who remained on the bench well into his eighties.

It seems that when a Justice hits 80, with a president in the White House that has compatible jurisprudential views, legal scholars and politicians of the same bent emphasize the significance of a compatico-appointment; get while the gettin's good, so to speak.  This is now happening to Justice Ginsburg who, amid a growing chorus to step-aside, states publicly that having a Democrat in the White House will not factor into her decision when to retire.

Justice Ginsburg went on a bit of a publicity tour this spring, giving speeches and interviews to Tier One law schools, lawyers' groups and newspapers on the seminal decisions of the 2012 term.  Of particular note, Justice Ginsburg commented on the same-sex marriage DOMA decision, saying she did not think SCOTUS should create a constitutional right to gay marriage, like the High Court did with abortion in Roe v Wade in 1973; far too activist she says.

A little-known secret to those outside the legal industry is that Justices do not always pan-out according to the hopes and wishes of the President that appoints them.  President Regan's appointment of Justice Anthony Kennedy, the centrist on the current SCOTUS, is the most notable example of recent decades.

Not so with Justice Ginsburg.  President Clinton knew her liberal roots were sunk deep and she has not disappointed.  Justice Kennedy's "swing-vote" centrism, and Justice Ginsburg's senior liberalism is what gives the current Court it's 5-4 flavor on the seminal cases it has been deciding over the past few years.

Every fall, as the High Court begins its work of listening to the oral arguments of the selected cases, and drafting the decisions opinions, there is perennial commentary about the degree of activism of the Court. According to Justice Ginsburg, the Roberts' Court is among the most activist she has seen during her tenure on the bench.

Liberals fear that unless Justice Ginsburg steps-down soon, a Republican President may likely have the opportunity of appointing a conservative justice mid-decade.  These are the ways politics affect our delicate social fabric on the major legal issues of our time.

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We've been watching the gay-marriage case, Hollingsworth v Perry, for two years; here's a link to our first post detailing case.  Two well-funded homosexual couples from California, one gay, one lesbian, challenged California's proposition 8 in federal court back in 2008, and the case finally will be orally argued tomorrow at the SCOTUS.

Their lawyers, Ted Olson and David Boies of Bush v Gore fame, are well-suited to the task of bringing the couples' privacy-based arguments to the Supreme Court.  Olson was Solicitor General under President Bush; he appears to have changed his stripes for this one.

Since that original post, two other consolidated federal cases have made their way through the federal court system and will be argued before the SCOTUS on Wednesday.  United States v Windsor challenges the denial of federal benefits for gay couples under the Defense of Marriage Act [DOMA].

As many as 17 states have filed amicus briefs in opposition to gay marriage.  Court watchers are bracing for a seminal ruling along the order of the High Court's Roe v Wade decision that legalized abortion.

Others say, "not so fast."  Justice Ruth Bader Ginsburg is one such voice.  She has made a series of public comments lately critical of such sweeping decisions; they go too far too fast says Ginsburg.

A less judicially active approach in the Roe v Wade would have been to strike down the Texas anti-abortion law on an "as applied" basis, but leaving the broader constitutional questions to be determined on a state-by-state basis.  Of course, this is not what the Roe v Wade Court did; the political and cultural fall-out continues to this day.

Considering possible outcomes in the gay-marriage cases being argued today, the post-modern SCOTUS faces the choice of invalidating California's Proposition 8, and if they do, whether they do so in a broad or narrow fashion.  Expect concurring and dissenting opinions; perhaps even a plurality decision which, by its nature, has a less-binding effect on subsequent courts.

Either way, we will keep our readers posted when the decision is announced at some point in June like we did when New York legalized same-sex marriage in June of 2011.  The results from these cases will be important to Michigan which, like California, passed a constitutional amendment declaring marriage to be a status limited to heterosexual couples.

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