Archive for the ‘Law’ Category

Delaware Republican senate candidate Christine O’Donnell is back in the news today, just two weeks out from the midterm elections, after questioning in a debate whether the Constitution calls for a separation of church and state.

Courtesy of The News Journal.

The debate with Democratic candidate Chris Coons, before students and professors from Widener University Law School, was aired on WDEL and seemed to be more hostile than the nationally televised debate on CNN last week.

The freedom of religion exchange began with Coons, who stated that private schools are free to teach creationism, but “religious doctrine doesn’t belong in our public schools.”

O’Donnell responded, “Where in the Constitution is the separation of church and state?” drawing laughter from the crowd. “You’re telling me that’s in the First Amendment?”

Coons, on the other hand, The News Journal reported, was challenged by O’Donnell to name the five freedoms guaranteed by the First Amendment. “He deflected.” For the record, it’s press, speech, religion, petition and peaceful assembly. “Perhaps they didn’t teach you constitutional law at Yale Divinity School,” O’Donnell said to gasps. It’s worth noting Coons has a law degree from Yale as well as a Master of Arts in Religion.

Later, O’Donnell was asked about her position on the 14th, 16th and 17th Amendments. She reportedly asked what the first two were. “I’m sorry I didn’t bring my Constitution with me,” she said. “Fortunately, senators don’t have to memorize the Constitution.” The 14th Amendment, which includes language on due process and equal protection, most recently has come under fire for providing citizenship to any person born within the United States. The 16th Amendment deals with the federal income tax. The 17th Amendment allows for the direct election of U.S. senators by popular vote. O’Donnell said she opposes repealing the 16th and 17th Amendments; she was unclear about the 14th, saying the U.S. should close its borders before discussing amnesty.

Going back to her stumble during the CNN debate regarding recent Supreme Court decisions she disagrees with, O’Donnell said her statements during that debate were taken out of context and that there have been few cases in the last few years with which she disagrees. She again cited Roe v. Wade and Kelo v. City of New London, a 2005 case which furthered the government’s eminent domain powers, as bad decisions.

Full audio of the debate, provided by WDEL, is below in three parts.


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Judge Virginia Phillips of the Federal District Court for the Central District of California yesterday ordered a worldwide injunction banning enforcement of the military’s Don’t Ask Don’t Tell law.

The 17-year-old ban on open gays serving in the military “infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and (b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution,” Phillips wrote in the injunction.

The injunction came following her ruling last month that DADT is unconstitutional. Although the ruling and yesterday’s injunction has been hailed as a landmark for LGBT rights, the government has 60 days and is widely expected to appeal before the injunction takes effect. A stay will almost certainly be granted in the meantime. “The Ninth Circuit will likely stay the effect of this order and, if it does not, the Supreme Court will do so,” Dale Carpenter writes at the Volokh Conspiracy.

Jason Mazzone at Balkinization notes that the Obama administration could play both sides of this touchy issue.

The Department of Justice can both appeal and not appeal. It can appeal the terms of the injunction as beyond the scope of Judge Phillips’s authority and argue to the appellate court that any relief Judge Phillips orders must be limited to the benefit of the plaintiffs before her or to the jurisdictional area of California where her court is located. At the same time, the DOJ can downplay objections to Judge Phillips’s ruling that DADT is unconstitutional; the DOJ can even forego entirely the constitutional issue on appeal. The message to gay rights advocates can be: “Judge Phillips is right.” The message to political challengers can be: “We’re appealing Judge Phillips’s ruling.”

University of Wisconsin law professor Ann Althouse disagrees on her blog. The timing is all off, she notes, and besides, Obama has proven wishy-washy on LGBT rights issues, something that could come back to haunt him and the Democrats in November’s midterm elections.

But what damnable luck for the Democrats to have this thrown at them 2 weeks before the election! It’s such a bad issue for Obama. He hasn’t done what he promised, and he’s fought against constitutional rights that he ought to be actively pursuing, whether he’d made promises or not. He’s going to have to rest on the argument that he was always all about Congress making the change. But why hasn’t his Congress gone his way? And do Democrats in Congress want this issue forefronted now? They’ve only made everyone unhappy — people who want DADT repealed and people who don’t. And then there’s the additional issue of “activist” judges.

Andrew Sullivan places some blame on Congressional Republicans, who successfully blocked legislative repeal of DADT several weeks ago. Although their public objection was that the repeal was tacked as a rider to the annual defense spending bill, Sullivan remains pessimistic about a legislative repeal moving forward.

Here’s the thing. We have no guarantee that the Senate will pass legislative repeal of DADT in this session; and there’s every chance that a radically Christianist GOP will win majorities in one or both Houses and definitely be able to sustain a filibuster against repeal in the next session if necessary. This is not because even most Republican voters back DADT; it is because it is a party hijacked by religious fundamentalists who cannot conceive of openly gay people serving their country. Look at the party of Paladino and DeMint and Palin. You think they will support anything that could remotely be deemed pro-gay?

The Department of Justice has 60 days, until Monday, December 13, to appeal, and if the administration plans to appeal they will likely wait until after the election in three weeks to do so.

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The Supreme Court heard arguments yesterday in a controversial First Amendment case regarding protesting military funerals. Members of the Westboro Baptist Church in Kansas are infamous for protesting military funerals across the nation, displaying signs that imply soldiers’ deaths are God’s punishment on the nation for things such as accepting homosexuality, laws allowing abortion and rising divorce rates.

One recent protest took place for a soldier and 2008 graduate of the College of William and Mary in Williamsburg, Va. As has become more and more common at the WBC’s protests, locals showed up to counter-protest, in this instance over 100 people.

For this case in particular, members of the church protested at the Maryland funeral of Lance Cpl. Matthew Snyder, who died in Iraq. Snyder’s father, Albert Snyder, sued the church for emotional distress and was awarded $5 million before a federal appeals court reversed the decision in favor of free speech, no matter how offensive.

As Mike Sacks reports over at First One @ One First, the press and general public seeking entrance to yesterday’s oral arguments in the case, Snyder v. Phelps, was larger than any case last term, including Citizens United.

The upshot, however, is that those cases yielded landmark decisions, while Snyder will bring nothing of the sort.  If there’s any lesson at all to be gained from this morning’s oral argument, it’s a reassertion of the truism that bad facts–or, in this case, exceedingly unique facts–make bad law.

As many reports indicated, the Court had a difficult time parsing the case’s facts and emotional impact. It was made exceptionally difficult in that both sides were well-prepared with legal arguments.

Lyle Denniston at SCOTUSblog asks “Should we — and can we — set aside our emotional reaction?  If the answer, implicit or otherwise, is no, the Justices may then proceed to craft a way to write into the First Amendment a  ‘funeral exception’ to the right to speak out in public in outrageous and hurtful ways.”

Such an exception would change be a major change to the court’s list of exceptions to free speech established in 1942’s Chaplinsky v. New Hampshire.

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.

Although some facts threw doubts on the Snyder camp’s claims, the court seemed split between protecting free speech and sympathizing with the Snyders. The justices spent a while on hypotheticals when question the church’s lawyer, Margie Phelps (the daughter of Fred Phelp, WBC’s pastor and the case’s respondent), including this gem.

Alito: All right. Well, Justice Kagan gave you one example. Let me give you another example along the same lines. Let’s say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED. And she goes to visit her son’s — her grandson’s grave, and she’s waiting to take a bus back to her home. And while she’s at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do? Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it. And on and on. Now, is that protected by the First Amendment? There is no false statement involved and it’s purely speech.

Phelps: Right. And — and it may give rise to some fighting words claim, depending on the proximity and the context. And I would have to know what –

Alito: Well, it’s an elderly person. She’s really probably not in — in a position to punch this person in the nose.

Scalia: And she’s a Quaker, too.

The court transcript here notes laughter, and after hemming and hawing for a bit Phelps reluctantly said it was not protected speech as they may constitute “fighting” words.

SCOTUSblog’s Dennison noted that, while many justices seemed undecided on the matter, Stephen Breyer spent some time ruminating on possible middle-of-the-road solutions.

By the end of the argument, it seemed that, if the Justices could settle on a legal principle to govern funeral protests of the kind that greeted the service for Marine Lane Corporal Matthew Snyder, it might well be the compromise position suggested at one point by Justice Stephen G. Breyer.  The First Amendment would allow a lawsuit for outrageously causing harm to someone’s emotional life — at least at a funeral — but limit it so that it would not forbid all forms of protests at such an event.  As Breyer put it: “What I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”

NPR’s Nina Totenberg said that it appears “that some justices who just months ago expanded the right of free speech to allow corporations to spend unlimited amounts in candidate elections are looking for a way to limit the rights of picketers at funerals.”

Mike Sacks at First One @ One First wrote that the court may in the end suck it up and side with the Westboro Baptist Church.

Yet for all the doubt the justices expressed towards the WBC’s claims of constitutional protection, Snyder’s argument simply could not carry the day.  Challenged by Justice Kagan to articulate a standard for how to determine which protests “glomming to a private funeral” should or should not fall outside of the First Amendment, Summers could articulate no governing principle.  Ultimately, it seemed, Snyder sought not a general rule of law, but rather a Constitutional carve-out for his own grief.  Such personalized positions are not the stuff of Supreme Court precedent.

Slate’s Dahlia Lithwick agreed that the court faces a choice between the law and the facts.

The headline writers are going to say that the justices “struggled” with this case. That may be so, but what they struggled with has very little to do with the law, which rather clearly protects even the most offensive speech about public matters such as war and morality. They are struggling here with the facts, which they hate. Which we all hate. But looking at the parties through hate-colored glasses has never been the best way to think about the First Amendment. In fact, as I understand it, that’s why we needed a First Amendment in the first place.

On the other hand, she wasn’t pulling any punches when it came to her own opinion.

Oh, and just for the record: What I hate is tripping over a child holding a sign that reads “God Hates You” as I am trying to get to oral argument at the Supreme Court. There is a special charcoal briquette in hell for parents who teach kids to think that way.

The court is not expected to release its ruling for several months. You can read the 56-page transcript of the argument here.

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The Judicial Conference of the United States, the federal judiciary’s policy-making branch, approved a pilot project last week to bring cameras into some civil proceedings. Parties can veto cameras, and the video will never show jurors’ faces. The cameras will be operated by court personnel, not news organizations.

According to a spokesman from the Administrative Office of the United States Courts, six district courts attempted similar recordings in the early 1990s, “but the program was never made permanent because of concerns about the impact on jurors and witnesses.” Of course, video is much more viral today than in the ’90s, in no small part due to the internet and YouTube. How the increased demand for transparency and access will balance with concerns about jurors and witnesses has yet to play out.

The JCUS decision doesn’t apply to the Supreme Court, which voted 5-4 earlier this year to ban video of Judge Vaughn Walker’s California Proposition 8 trial due to fears supporters of Prop. 8 would be harassed for testifying.

(Coincidentally, reenactments of the Prop. 8 trial were very popular on YouTube.)

Only a few justices have openly discussed their feelings about cameras in the Supreme Court. Justice Stephen Breyer, recently touring to promote a new book, told NBC’s Brian Williams expressed worry witnesses and such could fear being watched by their whole community but did acknowledge the possible benefits.

The answer to me is not obvious. We haven’t voted on it. I haven’t had to take a position. The reasons for doing it are obvious. I mean, television is part of the press. And I think wouldn’t it have been a wonderful thing if television could’ve been in the courtroom and seen the oral argument, for example, in the case of term limits, and many of these cases. You would’ve seen nine people struggling towards an answer in a very, very difficult kind of question.

The court’s newest justice, Elena Kagan, is on record as being fairly pro-camera.

If cameras were in the courtroom, the American public would see an amazing and extraordinary event. This court I think is so smart and so prepared and so engaged. And everybody who gets up there at the podium is – the toughest questions, the most challenging questions are thrown at that person. … I think if you put the cameras in the courtroom, people would see, ‘Wow,’ they would see an institution of their government I think working at a really high level. So that’s one plus factor for doing it.

But would cameras in the Supreme Court really help demystify its proceedings and power? In 2008 Linda Greenhouse, who covered the court for 30 years at the New York Times, said that while she is in favor of expanded video access, cameras in the courtroom may not make understanding the court any easier.

For one thing, the hourlong oral argument represents only a small part of the decisional process — the tip of the iceberg, you might say. For another, the arguments are not all that easily comprehensible to a casual viewer. I don’t mean that to sound condescending. But it’s important to realize that the arguments don’t proceed in a linear fashion. There is almost never a point at which the lawyer describes the case. It’s just assumed that the justices know the facts of the case and know the relevant law. The real question in the argument — whether stated or not — is: if we rule your way in your case, what are we buying into? What’s the implication for the next case or cases? The questions can range so far afield that not infrequently, even when I have thought I was fully prepared to listen to the argument (and for that reason, my practice was never to even bother going to an argument if I hadn’t read the briefs) I would be left scratching my head and wondering if somehow I was at the argument for the wrong case.

And following the Supreme Court’s minutiae was her job! Last week Arlen Specter introduced a bill requiring the court to allow cameras into its open sessions (although the legislature really has no way to enforce that, aside from cutting the courts’ budget, a dicey political move) unless the majority vote that doing so would violate due process for one or more of the parties.

The court already allows press and public access, and releases transcripts and audio recordings of its public proceedings — admittedly, months or even years later. Furthermore, the justices seem to be worried about creating pressure to produce sound bites for television news, something that anyone who has read through a handful of court transcripts can see does not happen now.

It seems the Supreme Court, at least for now, will continue on camera-less. In a few years, however, once this pilot program in the lower federal courts plays out and access to video becomes more and more available to the public, the court may have to reconsider its stance. Unfortunately, video of oral arguments would provide about as much transparency into the judiciary as C-SPAN does into the legislature or press conferences do into the executive.

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France’s senate yesterday approved by 246-1 (with 100 abstentions) a ban on burqas, a traditional Muslim garment for women that completely obscures the face. The ban comes with some severe penalties: women caught wearing burqas or other obscuring veils in public face a €150 fine and a “citizenship course”; men who force women to wear the garments face a €30,000 penalty and up to a year in prison. France has a Muslim population of five to six million, but only 2,000 women are estimated to wear burqas. However, the ban will also be imposed on tourists.

President Nicolas Sarkozy promoted the bill as a protection for women against wearing burqas or niqabs. “This is not about security or religion, but respecting our republican principles,” Justice Minister Michele Alliot-Marie told Agence France-Presse. “France, land of secularism, guarantees respect for all religions (but) hiding the face under a face-covering veil is against public social order, whether it is forced or voluntary.” President Barack Obama and many Islamic leaders have decried the ban as a violation of free speech and religion.

It’s worth noting that the ban had at least one female Muslim supporting it. “I support banning the burqa because I believe it equates piety with the disappearance of women. The closer you are to God, the less I see of you — and I find that idea extremely dangerous,” journalist Mona Eltahawy told Salon in July. Her argument is certainly interesting and is poorly served by my brief quotation; I highly recommend reading the entire interview.

According to the BBC, France’s Constitutional Council, the highest constitutional authority in France, now has a month to decide if the ban is legal, and the ban could also be challenged at the European Court of Human Rights in Strasbourg, France. The outcome of that scrutiny will be closely watched; Spain and Belgium are considering similar bans.

With all the recent controversies involving Islam — including the Park51 community center in Manhattan and the Florida pastor who planned to burn Korans on the anniversary of 9/11 last week — could a similar ban happen in America? Or rather, would such a ban be constitutional in America?

An online poll (the height of scientific accuracy!) conducted by Above the Law in May found 57 percent of respondents opposed the ban as a violation of religious freedom.

University of Chicago law professor Martha Nussbaum [another complex and nuanced argument, worthy of a full read-through] examines some of the common arguments from burqa opponents. Security concerns and the need to have faces visible in public are the primary argument, one she tears apart.

 It gets very cold in Chicago – as, indeed, in many parts of Europe.  Along the streets we walk, hats pulled down over ears and brows, scarves wound tightly around noses and mouths.  No problem of either transparency or security is thought to exist, nor are we forbidden to enter public buildings so insulated.  Moreover, many beloved and trusted professionals cover their faces all year round: surgeons, dentists, (American) football players, skiers and skaters. What inspires fear and mistrust in Europe, clearly, is not covering per se, but Muslim covering.

Nussbaum makes similar short shrift of arguments that the burqa objectifies women and is worn only through coercion. She also rejects the claim that burqas are uncomfortable, “the silliest of the arguments.” After systematically rejecting all the arguments for the ban Nussbaum concludes:

We don’t even need to reach the delicate issue of religiously grounded accommodation to see that they are utterly unacceptable in a society committed to equal liberty.  Equal respect for conscience requires us to reject them.

Nussbaum did not specifically examine France’s ban in her post, instead using the hypothetical liberal democracy. In a follow-up, however, she touched on French case law.

The French policy of laïcité does indeed lead to restrictions on a wide range of religious manifestations, all in the name of a total separation of church and state.  But if one looks closely, the restrictions are unequal and discriminatory.  The school dress code forbids the Muslim headscarf and the Jewish yarmulke, along with “large” Christian crosses.  But this is a totally unequal burden, because the first two items of clothing are religiously obligatory for observant members of those religions, and the third is not: Christians are under no religious obligation to wear any cross, much less a “large” one.   So there is discrimination inherent in the French system.

John Yoo, author of the infamous Bush administration torture memos, also weighed in over at Ricochet.

My bet if that the law were written in the way that the French have done it, it might have a chance. As I understand it, the French law does not mention or ban burqas specifically. It prohibits people from wearing masks in public, with certain exceptions for costumes (this being France, where people wander the streets of Paris eating eclairs and dressed up as characters in Dangerous Liasions, I suppose). If a law like that were passed in the US, it would be neutral toward religion on its face, as opposed to a law — like one that banned animal sacrifices, but with an exception for killing animals to eat them — that obviously targeted religion (that too, was another Supreme Court case).

UChicago law professor Richard Epstein, commenting on the same post as Yoo, seemed to be less decided on the matter.

The restrictions are uneasy if the objections to them are symbolic about the place of women in society. There is no reason why a majority of people could make the world seem unanimous by banning the Burqa. But, for one thing, were these decisions made by autonomous women or forced upon them by husbands or religious leaders who are prepared to force women to wear Burqas? At this point the law would be an effort to stop coercion, not encourage it.

Finally, Elise Jordan, writing at the conservative FrumForum, compared the burqa ban to banning KKK masks in an effort to protect blacks in the south.

The courts ruled in favor of equality over free expression because of security.  Men and women had as equal a right to see a face as did the man or woman who desired to cover it.  State laws banned full facial concealment in an effort to stop the violence.  (These laws eventually helped collapse the Klan because KKK membership winnowed in their new era of transparency.)

The takeaway is that if security is a consideration, no matter the sex, religion, ideology, or orientation, we are all equal in our right to view facial expression.  Women wearing burqas are likely not hiding a bomb, but the garment is used too often to conceal terror to be ignored.

Such a ban in the U.S. would face the conflict of restricting religious and speech freedoms in the name of increased security. If a court were seeking to resolve that conflict minimally (something the Roberts court has not been terribly good at) the most obvious solution would seem to be requiring some basic security precautions — say, on flights, or secure buildings, as well as requiring the face to be displayed on a driver’s license — and otherwise letting religion take its course. It would be difficult to prove burqas are in all instances oppressive to women, and with such uncertainty religious freedom would likely prevail.

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Apparently the job market is tough even in the federal judiciary. According to the Los Angeles Times, approximately one in eight federal judge positions are vacant “and legal scholars warn that the increasingly politicized confirmation process threatens the administration of justice across the nation.”

There’s blame to go around — Democrats say Republicans are childishly stalling judicial nominations; Republicans say it’s payback for Dems dragging their feet on some Bush nominees and Obama has failed to make non-Supreme Court appointments a priority. Slate’s Dahlia Lithwick has an excellent analysis of the blame game (“not all blame is created equal,” she writes). Whatever the reason, and despite ideology, Lithwick argues, courts matter, and conservatives have a much better mastery of the judiciary’s importance.

~~~Whatever side you’re on, the fight over gay marriage will be decided in the courts, as will the fight over regulating carbon emissions. The Voting Rights Act and health care reform laws are under attack in the courts, but so are Arizona’s immigration reform and Chicago’s new gun laws. Whether you support Obama’s legislative agenda or abhor it, having properly functioning courts should matter, because today in America every single legislative action has an equal and opposite legal reaction.

With that in mind, here are a few people who would make excellent judges (if you’re willing to look past their lack of law degrees or fictionality).

Chelsea Handler

She’s funny, sure, but what else would comedienne Chelsea Handler bring to the bench? Primarily, the ability to cut through the bullshit and call out her courtroom. She’s impartial, too, as evidenced by her recent evisceration of guest commentator T.J. Miller for speaking too slowly (he deserved it; “Chelsea Lately” is a spitfire pop culture commentary show, not some stoner sitcom). Chelsea is both experienced in life and hilarious on camera — providing she’s not doing pre-scripted stand-up. Keep her away from any opening statements and she would fill out a frilly robe nicely.

Jed Bartlett

Come on! He’s the perfect president: articulate, sophisticated, intelligent, analytical, learned, humorous, economic, diplomatic — and the worst thing that happened during his presidency was one little MS fiasco that ended suddenly when the ratings began to fall. He’s cheerful even in bad times, he can spew Latin at God and he certainly doesn’t pander to religious forces. Plus, he’s the smoothest-talking president since Bill Clinton. Sure, he’d have his detractors on the right (I can already hear “activist judge” echoing in the background) but you just can’t say no to a Novel Prize in Economics.

Glenn Close

While we’re on “The West Wing,” let’s take a look at the actress who played the new Supreme Court chief appointed by Bartlett, Glenn Close. Not the character herself; Evelyn Baker Lang appeared in a grand total of one episode, appropriate considering the relative insignificance of the Supreme Court. No, I’m talking about her other characters, rolled into one: I’m talking Cruella de Vil. I’m talking Patty Hewes. I’m talking Vice President Kathryn Bennett, who could jump out of a helicopter while requesting a status update and never got her blouse wet.

Jane Bingum

If you’re not familiar, Jane Bingum, portrayed by Brooke Elliot on Lifetime’s “Drop Dead Diva,” is actually a dead model who was accidentally sent into the body of lawyer Jane. She has her model memories but a lawyer’s knowledge, letting her do her job. Congratulations! If you’ve made it this far you can truly suspend your disbelief! In any event, Jane is for some reason an excellent lawyer — her lawsuits always get trial time immediately, and even though most of her suits are civil there is still always a jury that makes its decisions based on how strongly they empathize with Jane’s client rather than the facts of the case. Anyone who can successfully pull off lipstick lawsuits can handle the crap thrown at the judiciary these days.

Justin Bieber

If there’s one thing the courts need, it’s youth. Who better than current youth Justin Bieber? He’s got a babyface and a rapidly deepening voice to accompany it. Furthermore, anyone willing to ride in a tram pushed by Tina Fey deserves to make rulings about arcane tax laws and interstate commerce violations. Plus, he has a small but significant judicial track record, writing opinions in cases such as Baby, Baby vs. Playing It Cool, Stupid vs. Cupid and Omaha vs. The Mall. [A note in my defense: I had to look up Justin Bieber lyrics, I swear].

Lisbeth Salander

The Girl Who Hit Her Gavel Too Hard. She was wrongly pegged as a psychopath, when technically she’s really more of a sociopath. As Stieg Larsson made painfully clear, Lisbeth is tough and subscribes to her own style of virtual street justice, taking down those who wrong her by hacking their tax returns and tipping off the authorities. Her eidetic memory will help her recall obscure case law and formulate opinions, and how goth would she look in a flowing black robe?

Judge Fudge

Judge Fudge already has experience on the bench. The only reason to hesitate appointing him would be his schedule — he’s far too busy being delicious.

Orly Taitz

Because it would be funny.

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Earlier this summer, U.S. District Court Judge Vaughn Walker ruled California’s Proposition 8, which banned same-sex marriage in the state, violated the Constitution’s guarantee of equal protection without furthering any state interest. By most accounts, his ruling was legally well-founded and thought out. “[N]obody can fairly accuse Judge Walker of putting together an insubstantial or unsubstantiated opinion today. Indeed, the whole point of this legal exercise—the lengthy trial, the spectacularly detailed finding of facts (80 of them! with subheadings!)—was to pit expert against expert, science against science, and fact against prejudice,” legal correspondent Dahlia Lithwick wrote at Slate after the ruling was issued.

As expected, pro-Prop.8 conservative groups, including the American Family Association and the National Organization for Marriage, immediately claimed Walker is biased on the issue because, as the San Francisco Chronicle and other outlets reported, Walker himself is an out gay man.

“His situation is no different than a judge who owns a porn studio being asked to rule on an anti-pornography statute,” the AFA said in a statement. “He’d have to recuse himself on conflict of interest grounds, and Judge Walker should have done that.”

Legal experts made short shrift of the recusal demands. There are any number of instances in which judges should recuse themselves from cases: when they have direct or familial financial ties to one of the parties; when one of the parties contributed heavily to the judge’s election campaign; when the judge had previous involvement with the case at a lower level (such as Sonia Sotomayor recusing herself from a case she ruled on as a federal circuit judge, or Elena Kagan recusing herself from cases she helped craft while Solicitor General).

Although technically the law provides for recusal when there is sufficient reason to question a judge’s impartiality, attributes such as sexual orientation (or race or gender or religion or marital status, etc.) are not appropriate reasons, excepting perhaps for extreme situations, which this ruling, with solid legal reasoning, so clearly is not.

As Monroe H. Freedman, a legal ethicist at Hofstra Law School, told The New York Times, “You could say, ‘If a gay judge is disqualified, how about a straight judge?’ There isn’t anybody about whom somebody might say, ‘You’re not truly impartial in this case.’”

“Readers who are still not convinced should consider this: Would a white male judge have been expected to recuse himself in Regents of University of California v. Bakke? Of course not,” wrote Nate Jones in Time.

A similar battle is playing out in the media. Was it appropriate for newspapers to report that Walker is gay? The L.A. Times’ ombudsman, Deirdre Edgar, tackled the question in a recent column.

[T]he decision to include Walker’s sexual orientation was based on fairness. Walker’s political background (he was nominated by President Reagan and appointed by President George H.W. Bush) was included for the same reason, Lauter said. “Both — ideology and sexuality — are factors that a reasonable person could see as having an impact on a judge’s view of a controversial issue such as same-sex marriage.”

If the judge hearing the case were heterosexual, would that have been noted? Lauter acknowledged that it probably would not.

Arturo González, president of the Bar Association of San Francisco, disagreed.

Indeed, if this “totality of life experience” were so relevant to The Times, why did it not report on the sexual orientation of the heterosexual trial court judge who originally struck down the same-sex marriage ban in 2005, finding that it violated the California Constitution prior to its amending by Proposition 8? Why did The Times not report on the sexual orientation of each California Supreme Court justice who handled the same-sex marriage cases on appeal? Was it not newsworthy to The Times under its “totality of life experience” standard that the four justices in the Supreme Court’s majority recognizing same-sex marriages in 2008 are heterosexual? Is sexual orientation only newsworthy when a gay judge presides over a case involving lesbian or gay citizens?

Of course, now that The Times has articulated this new standard of relevance, it should at least walk the talk and apply it fairly to all judges. Even if it wanted to eliminate this double standard by applying Lauter’s “certain aspects of their humanity” benchmark just to all judges hearing the appeals, however, it would be a formidable undertaking. Such reporting would require accurate disclosure of each judge’s sexual orientation, marital status, religious background and beliefs, biological relationship to his or her children, and perhaps other factors. Even if such information could be obtained, it should be evident that such characteristics, by themselves, are irrelevant to an individual’s ability to be fair and impartial and are not the legitimate subjects of news coverage. The same filter should have been applied here.

González is correct that the Times has set a new standard of relevance. That new standard, however, is rather unsavory; it requires inappropriately personal coverage of the judiciary’s private lives.

For example, following the Times’ reasoning, any reporting on an abortion case would have to investigate whether the judge had ever had an abortion herself or, if she has children, whether she ever considered abortion.

In covering an affirmative action challenge, the Times would have to mention a judge’s race and whether he or she ever benefited from affirmative action initiatives.

Immigration rulings would also need to examine how far back the judge’s ancestors immigrated to America in order to properly evaluate any possible influences (unless, of course, the judge is Native American, which they would also have to note).

Does any of that seem copacetic? It is certainly tempting to find Walker’s sexual orientation relevant to the issue, but not only is such information irrelevant to legal reasoning, it is highly invasive and almost impossible to prove. It presents a dangerous new trend in legal reporting, one that should be halted immediately.

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