Page 30 - AVN April 2016

LEGALESE | | By Clyde DeWitt
Now What?
the longest
”In modern times,
Supreme Court
confirmation
process from
nomination to
resolution was
Brandeis, at 125
The legal ramifications of Justice Scalia’s death
the residence and the incoming president can go to bed there that evening—quite
a bit must transpire before getting around to judicial appointments.
Justice Scalia died on February 13, 2016; so President Obama had 342 days left
in his term upon his death. Add another six months to get a nomination, hearing
and vote, so you are talking about 500 or so days before we get a full Court!
That would be a modern record. In modern times, the longest Supreme Court
confirmation process from nomination to resolution was Brandeis, at 125 days
in 1916. More recently, Justice Kagan’s nomination came 31 days after the seat
became vacant; Justice Sotomayor’s, 25 days. Apparently, the record occurred after
Justice Henry Baldwin died in office on April 21, 1844. He wasn’t replaced for
more than two years, partly because of partisan gridlock.
The balance of the Court will be interesting in light of Justice Scalia’s death. On
issues near and dear to readers of this column, the typical split has been 4-4-1.
Four typically would side with arguments that would benefit the adult industry
in such matters as free speech (Justices Breyer, Ginsburg, Sotomayor and Kagan);
days in 1916.
LEGAL NEWS
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can
be found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your
personal attorney.
With the country more sharply divided than
at any time since at least the 1960s, the
death of Associate Justice Antonin Scalia is
likely to set off the most contentious face-
off in decades. Within hours of
news of his death, Republicans
vowed to block any nominee
that President Obama might
put forth; in turn, President Obama
promised to fulfill his constitutional duty
to promptly nominate a successor—which
he did at press time, naming Merrick
Garland. Now it falls to the
Senate to fulfill its duty to vote
on the nominee.
The Republicans currently
hold a 54-46 majority in the
Senate (technically 54-44-2 with the
two independents caucusing with the
Democrats). That, of course, means that
they are capable of knocking down any
nominee if they stay in lock-step, which
has certainly been the case lately. Perhaps
more significant is that the
Republicans have a majority on
every committee, including the
one that schedules hearings and
votes. As a result, they could block even a
confirmation hearing on a nominee.
Now, might any Republicans jump ship
and agree to have a hearing and approve
an Obama nominee? That seems unlikely,
given the chasm between the parties.
Whatever president wins the election is
not likely to bring forth a nomination on
his or her first day in office. Rather, even
if it is the same party, transitions take
time. There is a transition team that goes
to work immediately after the election,
but it takes a while to implement all of
that. Although the sitting president leaves
office and the new president takes office
at exactly noon on January 20—and the
respective staffs do a remarkable job of
shuffling things around so that the
outgoing president can wake up in
four typically would oppose (Chief Justice Roberts, along with Justices Scalia,
Thomas and Alito); and Justice Kennedy would provide the swing vote.
Now, with Justice Scalia out of the picture, consider this: If in one of these close
cases the justices vote as predicted, that’s four in favor, three against and Justice
Kennedy leaving free speech supporters waiting with bated breath. If Justice
Kennedy votes favorably, then the free speech side wins, 5-3 rather than 5-4. If he
votes unfavorably, rather than a 5-4 loss, it is a 4-4 deadlock. What happens then
is that the lower court’s decision is affirmed by an equally divided court.
The last thing is a little complex. Where a case is affirmed by an equally divided
court, it is not precedential. The court simply says, “The judgment is affirmed by
an equally divided Court.” The import of that is to leave standing the lower court’s
decision. So, the vacancy created by Justice Scalia’s death will have the practical
effect that if a decision that benefits the adult industry was on the way to a 5-4
victory, it will still prevail, but 5-3. However, if it was on the way to a 5-4 loss, the
new makeup will result in a 4-4 “no decision”—just as if it never happened.
Two things are clear. A Democrat will appoint a justice with an eye to overruling
Citizens United, the 5-4 decision allowing essentially unlimited campaign spending.
A Republican will appoint a justice with an eye to overruling Roe v. Wade.
Courts supposedly have great regard for precedent, overruling prior decisions
only in the most extreme situations. For example, the 1954 Brown v. Board of
Education decision, prohibiting segregation of schools, overruled the 1896 decision
in Plessy v. Ferguson, holding that separate but equal was just fine. The Court’s 2003
Lawrence v. Texas decision, striking down criminalizing homosexual sex between
consenting adults, overruled the Court’s 1986 decision in Bowers v. Hardwick,
holding the precise opposite by upholding those laws. However, both Brown and
Lawrence were decided against a background of radically changed social norms. The
public’s attitude about segregation dramatically changed during the five decades
between Plessy and Brown; as did society’s attitude—dramatically—about gay
relationship in the nearly two decades between Bowers and Lawrence.
However, Roe v. Wade and Citizens United present perhaps the most politically
contentious issues in modern times.
If the Republicans get what they want, they may wish that they hadn’t asked.
A third of the current Senate were elected in the 2010 Republican landslide. In
off-year elections—years when there is no presidential election—Republicans do
better. In presidential years, Democrats do better down-ticket. Also, of the 34
Senate seats that are up for election, 24 now are occupied by Republicans; only 10
are occupied by Democrats. The Senate definitely is in play; and so is the White
House. A Democratic White House with a Democratic Senate would mean that
the Democrats could pretty much call the shots as to the Supreme Court.
If President Obama sends a nomination to the Senate that has any chance of
passing, it will need to be a moderate. If President Clinton or Sanders sends a
nomination to a Democratic Senate, figure on another Ruth Bader Ginsburg.
Interesting times!
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