So I too the time and read the poll results. Only 45 percent said that they have a "favorable opinion" of the august body—although the pollsters tell me that this is actually up from 40 percent last year. Meanwhile, 30 percent of those polled have an unfavorable opinion of the Court and 20 percent just don't know what to think. More ominously, even as the Court takes fewer cases and shows more deference to the White House and Congress, 31 percent of those who responded to the Rasmussen poll said that they believe the Justices have too much power. Forty percent also said that the Court is too hostile toward religion.
I was about to become discouraged until I read the poll numbers that put Justice Clarence Thomas as the "most popular" Justice with a 48 percent favorable rating. Now, there are a lot of categories where I would put Justice Thomas at the top of my list (most grim, most somber, most likely to nod off during oral argument, least likely to be remembered as a great justice, etc.) but to think that he is viewed more favorably than the true shakers on the Court reaffirms my faith in the idea that polling is pretty much a load of hooey. I mean, honestly. Even though not ever asking a question during oral argument is an admirable trait that Justice Thomas possesses, and one that other Justices might want to emulate, it should not be enough to vault him over, say, the new Chief Justice, John G. Roberts, Jr.
Besides, the whole point of the Supreme Court, and the Bill of Rights, for that matter, is that the federal judiciary should be in almost all cases immune from public pressure and political popularity contests. It's true that the Supreme Court has been at its most shaky over the past 200 years when it has gone too far afield of public opinion too quickly. But that doesn't mean I want my Supreme Court Justices, especially the dour and disappointing Justice Thomas, to be tracked by the very same numbing pollsters who are telling me today whom the presidential nominee will be next summer. Some things are better left unknown.
Because the first three stories have gotten so much media exposure here in the States, and because the Gainey story hasn't, let me focus upon it. Once called by the Soviets "the greatest hockey player in the world" here is a man who is in the Hockey Hall of Fame in Toronto and who runs the Montreal Canadiens, the most storied franchise in the history of the National Hockey League. Here is a gentle, kind man who says what he means and means what he says. He is more respected and revered in Canada than any sports executive I can think of, past or present, here in the States. He is a good person, no make that a great person, and bad things, awful things, Kennedyesque things, keep happening to him.
Just over a decade ago, recounts fabled Montreal sportswriter Red Fisher, Gainey lost his beloved wife to brain cancer-- she was 39. His kids suffered, naturally, and so did he. One of those children, Laura, took to drugs and only recently found her way out to become a vivacious happy young woman. She was the child that Bob Gainey lost last week when she was swept by a wave off the sailing vessel she was travelling on out of Nova Scotia. She loved to sail, Laura Gainey did, and now a father will not even have his daughter's body to bury. Read Red Fisher's work,> you can easily find it online, and you'll get a better sense of what Bob Gainey is all about. Read it if you are a parent or a child.
Me? Despite reading the famous book many years ago, I don't know or understand why bad things keep happening to good people. For the Kim family out west and the Guay family down south and the Gainey family up north, there was no Hanukkah miracle this year. The lamp did not stay lit for eight days. And all the saints and apostles in the world, and all the rosaries and Hail Marys of a generation, couldn't stop this from being the worst Christmas they will ever have. Remember them, and the thousands of other Americans and Canadians who grieve this year like never before, and the millions of others around the world who do so, as you go about filling that holiday shopping list. In this season of giving, and getting, these poor folks had taken from them, before their time, in the most dramatic and terrible way, their most precious gifts.
Turns out that same-sex couples were unable or unwilling to wait for the nation's intricate justice system to fully resolve the same-sex marriage question before creating another legal head-scratcher—what to do about same-sex divorce? Earlier this week, a trial in Rhode Island threw up his hands and refused to decide whether a same-sex couple who had been married in Massachusetts (where such marriages are legal, remember) could apply for a divorce in Rhode Island (where such marriages are not).
Meanwhile, the named plaintiffs in that landmark Massachusetts same-sex marriage case have split up, as have the folks who were high-profile plaintiffs in California's big same-sex marriage lawsuit. All over the country, in fact, same-sex couples seem to be doing precisely what many opposite-sex couples do a few years or months after they get married—they are getting separated and divorced. People being people, no matter what their sexual orientation, I suppose this was as inevitable as it is disappointing. The courts soon will figure out a solution to the same-sex divorce question just as they are working on some certainty about same-sex marriage. I can't tell you how the Rhode Island case will come out. But I do know that the law cannot delay for long the desire of two consenting adults to separate their lives from one another.
Advocates of same-sex marriage and other gay rights issues have long argued that all gays and lesbians really want in the end is be treated like the rest of society. Opponents of this movement, on the other hand, have long argued that same-sex couples are different because they cannot naturally procreate and because history and our nation's Judeo-Christian traditions have not recognized their unions. This debate will go on forever and cannot be resolved to the satisfaction of all. But what now cannot be disputed is that same-sex couples have proven through their recent break-ups that they are, in this way if not in many others, just like the rest of the millions of us who are divorced. We all have failed to achieve or maintain the "sanctity" of marriage, whatever that means. We all, and for better and worse, have contributed to the demise of the institution as it once was known. So that "otherness" argument that same-sex marriage opponents have used against gays and lesbians seems in this case at least to me to have been knocked down a peg.
I'm a divorced dad. And because I failed at marriage I refuse on a personal level to judge anyone, gay or lesbian, white or black, nice or mean, who is hopeful or courageous (or just plain stupid) enough to give the institution of marriage a shot. In fact, if I were the King of the World, I would preclude any divorced person from ever voting in any election having to do with the same-sex marriage. Why? Because by getting divorced, for whatever reason, I believe we have forfeited our right to preclude others from trying to do better than we have. I feel bad for the same-sex couples who have split. K-Fed and Britney aside, I feel bad whenever any married couple splits up. But it happens. In fact, divorce is about as normal these days, unfortunately, as marriage is. That's a reality, we now know, that also has transcended the once-stout gay-straight barrier.
Right now, as near as I can tell, it is constitutional for local officials to allow a holiday display that has "religious" connotations so long as that display is included among other displays that tamper down any idea that local government is endorsing one religion over another or religion per se. This legal logic has led us to the Jersey City modelof holiday displays whereby local officials, to save their Christmas tree and Menorah display from being held unconstitutional, added to that display a sled, a Santa Claus, Kwanzaa symbols and, of course, that post-light of constitutional symbolism: Frosty the Snowman. You read that right. Frosty truly saved Christmas in Jersey City that year.
So although it's a little late in the game for this year, if you are still hankering to see a "holiday" display on your town's public property make sure you think big, expansive, and crassly commercial. Think cr?che but also think jumbo plastic Santa. You'll increase your chances that a federal judge out there will allow your display to stand through the holiday. Also, it'll keep your mind off otherwise bugging your neighbors by complaining about the "peace symbol" wreath they have chosen to place upon a wall of there home this season. Again, I'm not kidding. Some stout folks (with clearly way too much time on their hands) who are running a homeowners association in southwest Colorado are complaining about these days that the peace symbol is offensiveto some who live in the private subdivision. Can you imagine? Of course you can. Tis the season.
But one of the most vital and long-lasting reasons why control of the U.S. Senate matters is the role that body plays in confirming federal judges. If the Democrats regain control of the Senate, President Bush will no longer be able to try to force through that body staunchly conservative judicial nominees like the two men he recently nominated to serve on the U.S. Supreme Court-- Chief Justice John Roberts and Justice Samuel Alito-- and countless other lower federal courts judges who are even more ideological and partisan than those Justices. If the President wants to succeed in appointing any judges at all in the face of a Democratic Senate, he will have to look to more moderate jurists. And there are still plenty of them out there, in case you were wondering.
But Senate Democrats will face their own pressure points if and when Webb prevails. No longer will they be able, politically anyway, to threaten to filibuster when the President appoints federal judges. If they obtain their majority, they will have a responsibility to fill the many vacancies on the federal bench-- some that have existed for years. If they balk at this job they will subject themselves to an honest charge of obstructionism, the opposite of what they pledged to do on election night when the extent of their victory became clear.
There is an opportunity now, I believe, for real progress on the judicial nomination front, which has been mired for years in rank partisan conflict. The President has to know from these election results that he must govern with a more moderate focus. And if Webb prevails in Virginia Senate Democrats have to know that their newfound power brings with it newfound responsibilities to ensure that our federal judiciary is up and running at full speed, with many fewer vacancies than it now has. The moment is here. Let's see what the politicians can do with it.
Here is an example. "I want you, the voters, to know," the candidate told the crowd, "that I oppose abortion. I support having the Ten Commandments in our schools and courthouses. . . . I support the Second Amendment right to bear arms. . . . I believe marriage is between only one man and one woman." Nothing particularly unusual about a stump speech like that, right? Except that the candidate happens to be running for a position on the Kentucky Supreme Court. Rick Johnson, the High Court candidate from the Bluegrass State, makes no bones about where he stands (and how he will vote if he makes it to the bench) on the most contentious issues of our time. It's a tactic that is growing more and more popular around the country as laws and rules that once prohibited judges from campaigning like regular politicians have eroded or simply been overturned.
And while some judges like Johnson are on the ballot this election season, judges as a whole have become major campaign issues and even the subject themselves of ballot issues. In Colorado, for example, conservative politicians are seeking to impose term limits upon the state's appellate judges—a move that would force the removal of nearly 70 percent of that state's Supreme Court judges. In Hawaii, there is a big ballot fight over mandatory retirement ages for judges. In Oregon, there is an initiative that would create "voting districts" for judges to give residents a chance to have judges who better reflect their own values. North Dakota voters will be asked to limit the power of judges to rule in and on certain child custody cases. And from South Dakota comes the granddaddy of them all—a measure that would allow citizens to sue judges (and even force them to jail) over unpopular decisions.
Judges clearly are becoming more political—candidate Johnson is not alone in his willingness to pre-judge issue that will come before him as a judge— so perhaps it is no surprise that the art and act of judging is becoming more politicized. If judges are going to act like politicians, more and more voters seem willing to treat them that way. You can decide for yourself whether you think this is a good trend or not. Me? I think it's a disaster. The more partisan judges and judging seem, the less respect and authority judges will get when they issue unpopular decisions. And the ability and courage to make unpopular decisions is what judging is all about.
Good luck on election day when you have your chance to judge the judges.
The transcript of the event reads like the pep rally it was intended to be. And if the Attorney General actually typed out his responses I'll be a monkey's uncle. But one theme struck me as particularly interesting. Over and over again, Gonzales was forced to explain that the most onerous provisions contained in the Military Commissions Act of 2006 does not on its face apply to U.S. citizens. And, indeed, this is true. The suspension of the writ of habeas corpus – the ability of an imprisoned person to challenge their confinement in court—applies only to resident aliens within the United States as well as other foreign nationals captured here and abroad.
So while the new law dramatically reduces the legal rights and remedies of resident aliens, it does not restrict the rights and freedoms and liberties of U.S. citizens anymore than they already have been restricted. That's the good news. The bad news is that the Bush Administration, on at least two occasions before the new law was passed, tried to suspend the writ of habeas corpus for U.S. citizens. The men, Jose Padilla and Yaser Esam Hamdi, both were designated as "enemy combatants" by the White House and held for years in military custody without charges or due process before the U.S. Supreme Court essentially bailed them out.
So while there is nothing in the Military Commissions Act that makes it easier for the White House to point an accusatory finger at a U.S. citizen, label that person a terrorist and "enemy combatant," and then suspend his or her rights, there is nothing in that Act that makes it harder, either. Perhaps that is what helps explain the level of curiosity, if not downright distrust, implicit in some of the e-questions fired at the Attorney General yesterday. "Brad from San Jose," for example, started his question to Gonzales this way: "I am concerned about the potential for abuse of the new rules. What legal recourse does an innocent suspect have under the new legislation?" Gonzales wisely did not answer the question.
The habeas component of the Commissions Act is likely to generate the most legal scrutiny from the federal courts. The question will be: can the executive branch prohibit resident aliens (and others) from seeking access to the courts after they are designated as "enemy combatants" even if they are apprehended here at home? The White House asked for this prohibition, and the Congress granted it, because the executive and legislative branches have been stung by significant legal losses that have come about as a result of habeas petitions and, because of those losses, the federal courts currently are clogged with other habeas petitions, many of which similarly would succeed. Soon, the federal courts will decide whether the other two branches went too far in trying to freeze the judiciary out of the process.
The other controversial part of the Commissions Act, as several of the Attorney General's online pen-pals noted, was its explicit endorsement of "alternate" interrogations methods. This gives the White House the legislative go-ahead to continue to use such measures against terror suspects all over the world. It also gives the executive branch a measure of legal and political and perhaps even diplomatic "cover" for this conduct and it allows the White House to essentially judge for itself whether it is complying with the anti-torture provisions of Common Article 3 of the Geneva Conventions. That's the provision, remember, that the U.S. Supreme Court relied upon this past summer in striking down the Administration's plan to try the terror detainees at Guantanamo Bay.
The irony of all of us, of course, is that the least controversial part of the Commissions Act is -- wait for it -- the part that deals with military commissions set up to finally process and prosecute the hundreds of detainees now being held at Gitmo. In fact, if you are inclined to bet upon the progress of this new law, bet that the Supreme Court embraces the new rules governing the tribunal proceedings at Gitmo—those rules being a significant improvement on what came before—but is skeptical of, with gusts up to hostile to the other moving parts of the Commissions Act. This means that this grand legislation "solution" we've been hearing about for the past few months isn't guaranteed to do anything but tie up the federal courts for a few more years—a point that didn't happen to come up during the Attorney General's online schmooze-fest yesterday.
Your first year goes pretty smoothly. Your leadership is not tested. Then you come to Year 2. As you look at your business plan you realize that you and your co-workers have taken on projects that necessarily will bring out the conflicts between and among you. Never mind herding the cats. Now you are just hoping the cats don't come screeching after you.
Welcome to the world of United States Supreme Court Chief Justice John Roberts, who today begins his second term as the head of High Court. If last term prompted talk of Roberts' ability to bring consensus to the Court, this term is likely to prompt talk of the vast divides between the Justices. Abortion rights. Affirmative Action. Global Warming. Criminal Sentencing. Most of the most contentious issues around these days will come before the Justices this term and in most cases will be decided by a single vote or two. No one will say next June that the Chief Justice's leadership wasn't tested this time out.
For another relative newcomer, Justice Samuel A. Alito, Jr., the new term gives him a second chance to make a first impression. How different will he be from his beloved predecessor, Sandra Day O'Connor? And how much will those differences matter from case to case? Just a few of the many questions that will be answered when the dust settles, the decisions begin to come, and the law is crafted by the one court in the land from which there is no appeal.