Page 29 - AVN March 2016

paid slave wages to suffer outrageous working conditions—a condition
that the Republicans are doing what they can to reinstate.
The President’s Other Appointments
By now, hopefully you have come to understand the importance of the
Supreme Court and of the importance of the President’s appointment
power. That power, by the way, also applies to lower federal court
judges that are in the trenches and decide the lion’s share of cases.
The president also appoints the heads of his many departments—
the Cabinet—importantly including the attorney general, who heads
the Department of Justice. The Department of Justice lawyers are the
national prosecutors, with discretion to determine which federal laws
should attract the most law enforcement attention. The FBI is a part of
the Department of Justice.
Since 1985, when President Reagan was sworn in for his second
term, every Republican administration has supported and enforced
the federal record-keeping and labeling law, 18 U.S.C. §2257, and has
brought obscenity prosecutions; and no Democratic administration
since then has done so. That, folks, impacts your business and your
freedom.
The United States is divided into nearly 100 federal districts, each
of which has between a handful and a couple of dozen district judges.
There are 13 courts of appeals, each of which has a comparable
number of judges, often called “circuit judges.” Each court of
appeals handles appellate matters from a handful of states, with two
exceptions: the Federal Circuit, which primarily handles patent cases,
and District of Columbia Circuit.
District judges and circuit judges, like Supreme Court justices, are
appointed for life by the president “with the advice and consent of the
Senate.” Many judges of the district courts eventually are elevated to a
court of appeals, although that elevation process requires presidential
appointment and Senate approval, just as in the first instance.
Thus, it is the lower federal judges who are in the trenches and who
usually have the final say on the interpretation of the law.
The United States Senate
Not all of you will have the opportunity to vote for a Senate seat
because, as you remember from civics, the two senators from each
state serve six-year terms. As a result, your state will not have a
Senate seat on the ballot every third general election.
However, if you do have a Senate vote this time, understand how
important that is. In 2016, the Senate definitely will be in play—and
the conservatives are pouring money into it like no tomorrow.
The Senate is a curious body. Each state, of course, has two
senators, regardless of population. In the political environment that
has existed since the beginning of the growing chasm between the two
major parties in the 1960s, Republicans have started with a huge leg
up because, for example, sparsely populated Republican states such
as Wyoming and Montana each have the same representation in the
Senate as hugely populated Democratic states like California and New
York.
There are two important things to know about the Senate: Thing
One is that a 60-40 majority has the power to filibuster—to bring
Senate action on a given topic to a grinding halt. Thing Two is that a
two-thirds supermajority can override a presidential veto if the House
does the same thing.
The Republicans now have a simple majority, with no hope of
obtaining the two-thirds majority needed for veto power, but they are
Continued on page 32
Scalia’s Legacy
Upon his recent death, Justice Antonin Scalia
was the longest-serving justice sitting on the
United States Supreme Court. “Nino” Scalia,
known as much for his dear friendship with
the other justices on the Court as for his
spirited sparring during oral arguments and
his blistering dissents, from the day he took
office in 1986, was idolized by conservatives
as supplying intellectual firepower for their
cause, central to which was his vehement
opposition to Roe v. Wade. Neither his
intellect nor his congeniality ever were
credibly challenged.
A native of suburban New York City,
educated at a Manhattan prep school, at
Georgetown and at Harvard Law, he went
to private practice and then the University
of Virginia as a professor; and later the
University of Chicago, where he put a
charge into the fledgling ultra-conservative
Federalist Society. He worked in the Nixon,
Ford and Reagan administrations, the latter
rewarding him with an appointment to the
United States Court of Appeals District of
Columbia Circuit.
Recall that President Reagan’s first
appointment to the Supreme Court was
Sandra Day O’Connor, a justice who did not
materialize into the conservative mold for
which the Republicans were hoping. During
his 1994 campaign for his second term,
Reagan aggressively courted evangelicals;
and, after his landslide reelection to which
they so profoundly contributed, he owed
them.
In 1986, then-Chief Justice Warren Berger
announced that he was stepping down. The
attorney general by then was Edwin Meese
III, remembered most by readers as having
set in motion the hearings which culminated
in the so-called Meese Commission Report
and launching the federal government’s
attack on the adult mail-order (Operation
PostPorn) and video (Operation Woodworm)
industries, vowing to rid the country of
explicit pornography. However, another
function of the Department of Justice
is to advise the president about judicial
appointments. Meese orchestrated a double
whammy: First, President Reagan would
nominate then-Associate Justice William H.
Rehnquist to be the chief justice. Rehnquist,
appointed by President Nixon in 1972, he
was indisputably the most conservative
justice on the Court. Elevating Rehnquist
to the chief justice position would leave an
opening for a new associate justice. For that
opening, the nominee would be Antonin
Scalia, then a judge on the Court of Appeals
for the District of Columbia Circuit.
Scalia was not then widely known, which
is the case with most justices on lower
federal courts. However, he was the perfect
choice for Meese. Although it is obvious
that Meese’s Department of Justice had
thoroughly vetted Scalia, especially with
respect to abortion, that wasn’t widely
known. The Republicans were determined
to not repeat the mistake that they perceived
in Justice O’Connor’s appointment.
Additionally, Scalia would be bound to do
well in confirmation hearings. He was
brilliant, yet affable—an avuncular scholar.
Both were confirmed; and on September
26, 1986, Rehnquist was installed as chief
justice; and Scalia was installed to replace
him as associate justice. That combination
left hook and right-hand cross meant that the
Republicans had installed the most proven of
a conservative Chief Justice imaginable, along
with a new associate justice who was almost
certain to be at least as far to the right.
If the chief justice is in the majority on a
case, it is the chief justice who decides which
justice will author the majority opinion,
including that the chief justice can keep
the assignment for himself. As an aside,
concurring and dissenting opinions are
optional. Any justice who feels the need to
chime in may do so. For dissenting opinions,
Scalia wrote many against positions that
AVN readers likely embrace.
As to oral argument, similar latitude is
allowed. At one extreme is Justice Thomas,
who almost never asks questions. Justice
Scalia was the opposite extreme, appearing
to view oral argument as a sport. That was
especially true in a case where, going in, he
had already made up his mind. He would
pepper litigants with questions to make light
of the argument that he disfavored.
From time to time, Justice Scalia did make
rather surprising votes that Republicans
did not embrace. For example, he voted to
require a jury finding of facts that would
increase a sentence in a criminal case.
All told, Justice Scalia was a Supreme
Court powerhouse. The court plainly will be
worlds different without him.
—Clyde DeWitt
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