Putting the Kibosh on Kavanaugh

As I understand the rules of the Senate, it requires 51 senators to be present in order to make quorum.  And quorum is required in order to move forward with all Senate business, including the matter of Brett Kavanaugh’s nomination to the Supreme Court.

That being the case, McCain’s absence, though obviously regrettable, opens a political door for the Democrats.  I don’t mean to be cavalier or grossly political, but politics is the business of power and opportunity and without Senator McCain, the Republicans cannot make quorum on their own.  Vice President Pence can cast a tie-breaking vote but he cannot make quorum.  And without quorum, the nomination is stalled.  
In my mind, the path is now clear for the Democratic leadership in the Senate: hold the line on quorum until after the November 6 midterm election.  It presents the risk of seeming obstructionist (quite frankly because it is obstructionist) and some of the Democratic senators standing for re-election in states that lean Republican (Joe Manchin in West Virginia; Joe Donnelly in Indiana; Heidi Heitkamp in North Dakota) may find the strategy problematic and risky.  But for each of those senators there are some facing re-election in competitive states (Claire McCaskill in Missouri; Bill Nelson in Florida; and Jon Tester in Montana) who could benefit.  All of them can claim to be taking action to hold the line against Trump corruption and a Supreme Court nominee determined to support presidential power even in a circumstance where the president is an unstable, corrupt, tyrant.

As I see it, we are in the political battle of our generation and all strategies and tactics must be on the table. So I am calling on the Democratic leadership to take the risk and lead.  This is your move, Senator Schumer, and I’d like to see you be decisive.

Marking Justice Scalia's Words

Ten years ago this very day, in his dissent from the ruling in Lawrence v. Texas, Justice Scalia issued a "mark my words" warning: the gays will want marriage next, he said (well, in so many words).  Justice Scalia was right, of course, as gay Americans were already maneuvering a series of marriage lawsuits back in 2003.

Today, gays affirmed that Justice Scalia was right.  And we did it with the help of the Supreme Court, who struck down the federal Defense of Marriage Act (DOMA), characterizing it as an act discrimination motived by "animus."  The Court invoked equal protection matters (the same argument used to strike down the Texas Homosexual Conduct law).  The Court also ground its ruling in an understanding of federalism that permits states to make their own marriage laws.

Wow.  This is a really big deal.  I'll have a lot more to say soon enough.  But for now, I'll be out celebrating my equality under the law.

Supremely Anticipated

Per its habit in recent years, the Supreme Court has waited to the last week of its current session to issue a host of big-ticket decisions, four of them in total.  The Court typically offers opinions on Monday or Thursday, though they can issue opinions whenever they damn well please (including waiting until the next session if they choose).  But most Court observers think it will be this week.

Two of the expected decisions have to do with same-sex marriage and two others deal with race, the Voting Rights Act and affirmative action, respectively.  Full analysis of the issues in the cases (and the decisions when they become available) can be found at the Scotus blog website, which is really the best source for quick information about the decisions that is solid, plain-spoken, legally rigorous, fact-based analysis.  Unlike the hyperbolic mainstream media, Scotus blog is careful to get things right.

I figured it would be fun to make a few predictions about the same-sex marriage cases and to do so in public, so here are my thumbnail predictions.  In Windsor v. U.S., the case which challenges the constitutionality of the Defense of Marriage Act (DOMA), I predict the court will strike DOMA down, arguing that it is a violation of states' rights in our system of federalism.  The federal government allows states to set conditions for marriage and therefore will be told by the Court to live by this standard consistently.  This won't mean that gays can marry everywhere, but it will mean that in the twelve states that permit gays to legally marry, those same-sex married couples will have federal marriage rights as well.

The second same-sex marriage case, Hollingsworth v. Perry, is about the constitutionality of California's 2008 Proposition 8, a state constitutional amendment that banned same sex marriage in the Golden State.  The Proposition followed on the heels of a California Supreme Court decision that legalized same-sex marriage.  Because it was a state Constitutional amendment, it trumped the California Supreme Court ruling.  This case is a morass of confusion because the state of California refused to defend its law, making it possible that the Supreme Court will reject the case for lack of standing (the right to appear before the Court).  If the Supreme Court does issue a ruling, I think that it will hinge on the position that the Court took in Colorado's Amendment 2 in a 1996 case called Romer v. Evans.  In that case, the Court advised Colorado that amending its constitution to specifically limit the rights of specific groups (in this case, gays) was a violation of the 14th amendment equal protection clause.  This precedent could be applied to California's Proposition 8, should the Court elect to offer an opinion in the case.  I think that is what the Court will do.

In both cases, then, supporters of same-sex marriage will enjoy a victory that reflects the shifting public opinion on the issue of same sex marriage.  Call me an optimist, but I think it's going to be a good week for gays.

Supremely Disrespectable

We headed over to the Supreme Court yesterday and got a nice behind-the-scenes tour. Sadly, the actual courtroom is being renovated, thus derailing my dream of a photo of me sitting in Justice Roberts chair and banging the gavel.

The Court's building is a beautiful edifice of white marble. The Hall of Justice at the entrance, with its marble busts of the former Chief Justices and soaring 43 foot ceilings, makes quite an impression. The building was finished in 1933; Congress appropriated $9.5 million for the building and the project came in under budget, with $95,000 left over. That year, the justices used the extra cash for the nation's biggest kegger.

I had my picture made next to the white marble bust of Roger Taney, my nominee for most-bigoted and lazy Supreme Court judge (bigoted because he wrote the Dred Scott decision; lazy because he introduced the idea that the Chief Justice need not write all the opinions of the Court).
I learned that all of the Court was made of materials in the United States. So you've got marble from Alabama and wood paneling from Vermont. But the actual courtroom is made exclusively of materials from foreign nations. Nothing made-in-America in that room. And I found myself wondering: how does Justice Scalia feel about that?

Downstairs was a display of portraits of some of the lesser-known justices. Then I saw a sign for the Supreme Court ATM and vending machines.
Now I have to say that rather amused me, the idea that the nine justices occasionally scare up some quarters in the pockets of their robes and then shuffle downstairs to score a cold soda. So I peaked around the corner to find a bust of Justice Brandeis facing the vending machines.

Brandeis was a remarkable judge, so I'm not exactly sure why he got the job of guarding the machines. But here is the most pressing question, as yet unanswered: was he a Coke or Pepsi man?