Third in a series of posts about the politics of filling the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg
In my last post, I suggested that purely from the standpoint of conventional political strategy, the President should nominate Sixth Circuit Judge Joan Larsen to fill Justice Ruth Bader Ginsburg’s seat on the U.S. Supreme Court. Judge Larsen is reportedly on the short list, so it’s certainly possible.
But we also know that the President’s political instincts rarely align with convention. And if he wants a public fight instead of a better chance of an electoral win, he has other options.
I think he will go with the current consensus front-runner, Amy Coney Barrett. And he’ll do it not because of her qualifications — which are excellent — but because her nomination is likely to create the most short-term political chaos.
Continue reading “The political calculus: Who WILL be the Supreme Court nominee?”
A guest post by M. Ryan Groff
On March 30, 2019, Clarence Thomas, Associate Justice of the U.S. Supreme Court, spoke at Pepperdine University School of Law’s 2019 annual dinner. He reflected broadly on the relationship between faith and judicial duty, drawing from his own experiences and also from past conversations with his former colleague, the late Antonin Scalia. During a brief aside, Justice Thomas questioned the meaning of oaths made by atheists:
“As an aside, I think it’s really interesting that people in a profession where we all take an oath, that they would look at people who have strong faith as somehow not good people when, if you’re an atheist, what does an oath mean? If you are a Christian, and you believe in God, what does an oath mean? You know, what do you say at the end of it? ‘So help me God.’ And you have taken an oath to God, and, as Mother Theresa said, it’s between you and God. So, you have given your word… when you give your word to God, is that special? And I think if you are faithful, you think it is special, and you work doubly hard to make sure you live up to it… Not only doesn’t it [faith] interfere in any way, it actually enhances your view of the oath.”
It is not difficult to understand what Justice Thomas means. If someone swears on something he does not believe exists, then there is good cause to question the trustworthiness of whatever was promised. However, the concern with these comments, ironically, has to do with oathtaking in colonial America and one of Congress’s earliest interpretations of the Constitution. Continue reading “The Affirmation Alternative: A Religious Case for Atheist Oaths”
My latest post at the New England Faculty Blog explains why the efforts of Senate Democrats to grill judicial nominees on their religious beliefs is both wrong as a matter of course, and a strategic blunder that the President is ready to exploit.
I am quoted toward the end of this NOLA.com story on the nomination of Wendy Vitter to be a federal district judge in the Eastern District of Louisiana. As I pointed out in the story, the EDLA is down two full-time district judges and desperately needs people to step in and roll up their sleeves: the district has the second-highest number of pending cases in the country, and the sixth-worst number of trials completed during the last fiscal year.
The story emphasizes that many observers are happy with Vitter’s nomination — she has more than 100 criminal trials under her belt as a state prosecutor, and generally seems to be well-respected within the New Orleans legal community. Still, detractors raise three objections to her nomination: her lack of federal litigation experience, her marriage to a former U.S. Senator, and her Catholic faith. None of these should derail her nomination.
Continue reading “Some thoughts on the Wendy Vitter nomination”
Israel’s Judicial Selection Committee reportedly is strongly considering Khaled Kabub, currently a district judge in Tel Aviv, for appointment to the country’s Supreme Court. If appointed to an open poisiton this coming February, Judge Kabub would be the first Muslim to sit on the court in a permanent capacity.
The Selection Committee includes (among others) current members of the Supreme Court, the country’s Justice Minister, and representatives of the Israel Bar Association. It is the bar association that is reportedly pushing Kabub’s candidacy. The choice is interesting not only because of Kabub’s religion, but because of his current position: he would be replacing Justice Yoram Danziger, who came to the court from the private sector, and there had been a general understanding that Danziger’s replacement would also be a private attorney. The bar association, however, has argued that it is important for the Court to reflect all segments of Israeli society, and the appointment of a Muslim judge would advance that cause.
I have written previously about the rabbinical courts in Israel, a court system which shares jurisdiction with Israel’s civil courts on divorce, family law, and personal status cases, but which applies entirely different law. This disparity often leads to a race to the courthouse among dueling spouses in divorce cases. Among the most controversial aspects of the religious law is a husband’s traditional power to withhold permission for the couple to divorce, which can trap women in unhappy or abusive relationships. Of late, the rabbinical courts have attempted to respond by sanctioning these “recalcitrant husbands,” although not to the degree advocated by women’s rights groups.
In an important new ruling, Israel’s Chief Rabbi David Lau has announced that aspiring rabbinical judges will now have to certify they have personally have not refused to grant their own wives a divorce. While refusal to grant a divorce is not automatically disqualifying, it will have that practical effect on a candidacy. An official in Rabbi Lau’s office stated that “Disqualifying candidates to be rabbinical judges for having been divorce refusers constitutes a values-based statement that a man who does not listen to the instructions of a rabbinical court can never be allowed to be a judge in a rabbinical court.”
Five men have been arrested in two Tunisian cities in recent weeks for breaking the Ramadan fast. Some are calling the arrests a violation of human rights and the imposition of religious tyranny. But John Spacapan of the American Enterprise Institute thinks it might be a positive indicator of judicial independence:
The legal dispute over these arrests arises from a paradox in the Tunisian constitution: while the constitution ensures protection from religious persecution, Article 6 makes the government “the guardian of religion.” Local courts used this clause to justify jail sentences for violating Ramadan. The limit on this kind of action lies, in part, in the Tunisian judiciary and the ability of secularists to appeal the interpretation of Article 6, a path to a precedent-setting ruling by Tunisia’s Supreme Court. In other words, an independent judiciary could be the key to establish the precedent of religious freedom essential to deepen the roots of Tunisia’s democracy.
The full article is an interesting read, and recommended.