To what do we refer?
First, to the federal appeals court in Boston, which struck down the Defense of Marriage Act [DOMA], ruling that the federal statute violates the constitutional rights of gay and lesbian married couples to equal treatment under the law. Declaring that "tradition alone is not enough to justify disparate treatment of same-sex couples," the three-judge panel unanimously concluded that DOMA ". . . failed to pass constitutional muster . . . . Under current Supreme Court authority, Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest." Joining Judge Michael Boudin in the 28-page decision were the First Circuit's Chief Judge, Sandra Lynch, and Judge Juan Torruella. In their ruling, the judges noted, " This is not merely a matter of poor fit of remedy to perceived problem [sic], but a lack of any demonstrated connection between DOMA's treatment of same-sex couples and its asserted goal of strengthening the bonds and benefits to society of heterosexual marriage . . . . DOMA does not explain how denying benefits to same-sex couples will reinforce heterosexual marriage . . . . Moral disapproval alone cannot justify legislation discriminating on this basis."
The court's action sets the stage for a much-anticipated showdown at the U.S. Supreme Court in the near future. (n.b. Lest anyone argue that Thursday's decision was the product of a troika of à ¼ber-liberal judges, it should be noted that Judge Boudin was appointed to the bench by President George H.W. Bush in 1992, Judge Torruella by no less than Ronald Reagan in 1984, and Chief Judge Lynch by President Bill Clinton in 1995 as the replacement for Judge Stephen Bryer, who moved up to the United States Supreme Court.)
The second "patch of intelligent light" broke through the depressing haze when a federal judge in Tallahassee ordered the state of Florida stop enforcing part of its recently enacted elections law; a statute which Judge Robert Hinkle characterized as putting "harsh and impractical" restrictions on voter registration groups. The section Judge Hinkle struck down required groups conducting voter registration drives to turn in registration forms with 48 hours of collecting them (previously it had been 10 days) or suffer a $1,000-a-day fine. Attorneys for The League of Women Voters -- a party to the lawsuit -- said the requirement was so onerous that it had stopped holding voter registration drives in Florida for the first time in 72 years. In his ruling, Judge Hinkle -- who was appointed to the federal bench by President Clinton in 1996 -- said the law and state regulations implementing it ". . . impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional."
Another part of the voter law which passed both Houses of the Republican-dominated Florida State Legislature by overwhelming majorities, required that groups running voter registration drives provide the state with the names, street and email addresses of every officer or volunteer who solicits and collects applications. According to the law, said registration agents are required to sign a form that acknowledges their understanding that it would be a felony -- subject to a five-year prison term -- to submit applications that include false information -- even if they don't know or have any reason to believe the information is false . In his ruling, Judge Hinkle wrote: "Requiring a volunteer not only to sign such a statement, but to swear to it, could have no purpose other than to discourage voluntary participation in legitimate, indeed constitutionally protected, activities."
The Florida law, which is part of a wave of what critics called "voter
suppression laws" backed by Republicans and enacted in 15 states within
the past year, is now under review by both the Department of Justice and
federal judges in Washington, D.C. It will be their job to test its
compliance with both the 1965 Voting Rights Act and the 1993 National Voter Registration Act.
Even as this op-ed is being written, the Florida State Association of
Supervisors of Elections has advised the counties to stop the mandated
purge of suspected non-citizens from the state's voter rolls. Florida
Governor Rick Scott mandated the purge in response to what he and his
advisors claim is a reasonable response to "an explosion" in voter
fraud. This voter purge -- like the 48-hour requirement and registrar
compliance laws -- is also undergoing careful legal scrutiny by the U.S.
Department of Justice. As with many egregious pieces of legislation
being enacted around the country, it is nothing more than a solution in
search of a problem.
As noted above, both of these patches of intelligent sunlight emanate from the same source: the courts . . . Which leads us to a brief discussion about the utter importance of the upcoming 2012 election, especially as it concerns "R.A.T.S." namely:
R oberts,
A lito,
T homas and
S calia
In theory -- and increasingly, in practice -- the one area where a president can exercise influence over the country long after his term of office has expired, is in his appointments to the federal bench. As an example, the Supreme Court that bedeviled President Franklin D. Roosevelt -- and declared much of his New Deal to be unconstitutional, especially in Schechter Poultry Corp. v. United States and United States v. Butler -- contained not a single Roosevelt appointee; that court included one Taft nominee (Willis Van Devanter) two Wilsonians (Louis Brandeis and James C. McReynolds) two from Harding (George Sutherland and Pierce Butler), one from Coolidge (Harlan Fiske Stone) and three Hooverites (Chief Justice Charles Evans Hughes, Benjamin Cardozo and Owen Roberts). In other words, seven of nine members of a court exercising a life-and-death veto over critical New Deal legislation had been appointed by presidents whose political and judicial philosophy was the bi-polar opposite of FDR's. By the same token, FDR would go on to appoint 8 members of the Supreme Court -- more than any president save George Washington. Three of FDR's most notable appointees -- Hugo Black, Felix Frankfurter, and William O. Douglas -- would be among that body's most liberal jurors. Two, Douglas and Stanley Foreman Reed, would continue to serve as retired justices until 1980 -- fully 35 years after Roosevelt's death.
Talk about exercising influence beyond one's term of office -- or in this instance, the grave!
Today, America has one of the most -- if not the most conservative Supreme Courts in that institution's 223 year history. According to a 2008 academic paper by Professor William M. Landes and Judge Richard A. Posner entitled "Rational Judicial Behavior: A Statistical Study," of the 41 men and two women who served on the Supreme Court in the seventy years between 1937 and 2006, five of the ten most conservative are currently on the bench: Thomas (#1), Scalia (#3), Roberts (#4), Alito (#5) and Kennedy (#10). Conversely of the ten most liberal justices during that period, only one -- Ruth Bader Ginsberg (#9) is currently on the court. (The most liberal was Justice Elana Kagan's old boss, Justice Thurgood Marshall.)
For the past several years, most critical issues coming before SCOTUS (Supreme Court of the United States) have been decided by a 5-4 vote, with Roberts, Alito, Thomas and Scalia being reliably conservative, Ginsburg, Breyer, Stevens and Souter (replaced by Sotomayor and Kagan) reliably liberal and Kennedy the so-called "swing vote." Looking at the calendar, one might surmise that Justices Ginsburg (79 years old), Scalia and Kennedy (both 76), and Breyer (74) could well retire within the next 4 years. By comparison, those who will likely be on the bench for the next 10 to, say 30 years, are Thomas (64), Alito (62), Sotomayor (58) Roberts (57) and Kagan (52). In other words, the future philosophical balance of SCOTUS -- not to mention that of our multi-tiered federal judiciary -- will likely be in the hands of either Barack Obama or Mitt Romney starting January 20, 2013.
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