Mr. (Justice) Breyer, Lobbyist

The New Threat To Judicial Independence

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“One must question whether Justice Breyer has violated the Code of Judicial Conduct by seeking congressional intervention to stop his colleagues from expressing their reasoned legal opinions with which he disagrees.”

With Senators Leahy, Durbin and Schumer already promising new levels of obstruction of President Bush's judicial nominees up to and including a promise to block - sight unseen - anyone the President nominates to the Supreme Court, and left-leaning "scholars" and activists calling for a new Court-packing plan along the lines of FDR's famous debacle, Senator Arlen Specter is providing covering fire for these partisan Democrats by announcing his intention to "review" the judicial opinions of Chief Justice Roberts and Justice Alito to see if they have "complied with" promises he believes they gave in their Senate testimony as to how they would rule on the bench.

Most Americans, no matter where they fall in the political spectrum, pay lip service to an "independent judiciary." However, based on the reaction -- or more accurately, non-reaction -- to this news from the left side of the spectrum, you would think they only get exercised when that independence is in danger from the Executive branch, as if Article III were not written specifically to warrant against an overreaching Legislature.
Senators dragging statements out of judicial nominees and then threatening hearings on whether they kept their promises on the bench should alarm anybody who (unlike Senator Specter) actually gives a hoot about judicial independence or principled application of the law.  It's enough to make you rethink why we let nominees testify at all.  But that's not the most disturbing aspect of this spectacle.  What's even more alarming is that Specter has apparently been lobbied to join in this partisan attack on judicial independence by none other than former Ted Kennedy aide (and now associate Justice) Stephen Breyer:
Please read the rest below the fold. . .

The idea for a review came to Specter when he said he ran into Justice Stephen G. Breyer at the Aspen Ideas Festival in Colorado .

Breyer, an appointee of President Bill Clinton, drew attention last month for suggesting that Roberts and the conservative majority were flouting stare decisis, the legal doctrine that, for the sake of stability, courts should generally leave past decisions undisturbed.

"It is not often in the law that so few have so quickly changed so much," Breyer said, reading his dissent from the bench to a 5-4 ruling that overturned school desegregation policies in two cities.

Roberts has defended his rulings as applications of "existing precedent."

Specter, however, said Breyer's statement was "an especially forceful criticism of the Roberts court."

"I only noticed it in a couple of cases," Specter said of the court overturning or undermining precedents. But Breyer, in their Aspen conversation, said "there were eight."

As the Wall Street Journal put it:

We hope Justice Breyer isn't kibbitzing the Senate to inquire into why his views haven't prevailed with a majority of his colleagues on the Court. We'll wait for more explanation from Mr. Specter, but he's wading into questionable separation-of-powers territory here.

(Pro-life Blogs calls it an "overt attempt to undermine Roberts and also influence the political process in judicial selections, altogether compromising the separation of powers.")

To say the least.

A Legislature that interferes in the decisions of a Judiciary is a greater threat to judicial independence than a meddling Executive, because the former has a longer memory and control of the purse strings.

In his desire to control the Court's direction, Justice Breyer has invited a level of interference in his Branch that he would fight to the death were it coming at, say, Justice Scalia's behest. We note too that the mainstream media would be squawking itself hoarse were Justice Breyer replaced by the name "Justice Clarence Thomas."

Justice Breyer has apparently overlooked a new-fangled method of dispute resolution between Justices on the High Court: Talking to his colleagues to discover why they rule as they do, and trying to persuade them to adopt his view. One would almost be inclined to believe that Breyer feels like he's suddenly lost control of the situation, and is now reaching out to the Legislature to help him reassert control. In other words, Justice Breyer is inviting a constitutional crisis to achieve his own political ends.

Of course, that's not the end of the matter. Curiously, the Model Code of Judicial Conduct states, in Rule 3.2

A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or legislative body or official, except (A) in connection with matters concerning the law, the legal system, or the administration of justice.

Couple this with Rule 1.3

A judge shall not abuse the prestige of the judicial office to advance the personal or economic interests of the judge or others, or allow others to do so

and one must question whether Justice Breyer has violated the Code of Judicial Conduct by seeking congressional intervention to stop his colleagues from expressing their reasoned legal opinions with which he disagrees and calling into question the professional reputations of his colleagues with whom he has a disagreement on a matter of legal interpretation.

Article III, Section 1, of the United States Constitution states:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

While the ABA's model rules are hardly a dispositive guide to good behavior, they are a good starting place. Especially when the independence of the judiciary is at stake.

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Mr. (Justice) Breyer, Lobbyist 9 Comments (0 topical, 9 editorial, 0 hidden) Post a comment »

1) He's shown he doesn't even have a basic understanding of the Constitution and the separation of powers. Not only that, he can't expect to have a 'comfortable' working environment when he's attacking the Chief Justice.

2) The "not one more penny" campaign will gather more momentum when the RSCC and the Republican operatives support Specter for re-election. (Whenever I see his last name, Sphincter, comes to mind) He needs a primary challenger.

Vista really sucks!

on this review process? I ask because I distinctly remember Justice Souter being dubbed "The Stealth Justice" for having sneaked his liberal intentions past President(H.W.)Bush and the confirmation process. Is what's good for the goose going to be good for the gander?

The Democrats has launched an all out assault on America. Would you think a partisan like Breyer would want to be left out?

Envisioning when all that is Left is the Right.

...when they see me they'll say, "There goes Loren Wallace,
the greatest thing to ever climb into a race car."

Specter has whined about not being Chair of the Judiciary, although he could have done something to hold the majority by keeping his pledge to vigorously campaign for Santorum. He's just the ranking minority member of Judiciary. Now he can only get TV time by being the GOP contrarian that the media loves.

Breyer might have had a chance at moving up to CJ if a Dem had won in 2000 or 2004. Perhaps he sees Roberts in "his" chair. Or he's auditioning for CJ under Hillary.

Breyer is also in the minority now, and no doubt finding his arguments in conference less convincing (at least to Kennedy) than the sharp, conservative positions put forth by Roberts and Alito. Breyer may also trying to throw his weight (whatever that is) behind Schumer's recent statements about any future Bush nominee being presumptively nor confirmable.

Why does Specter think his "review" of Roberts' opinions should be done? Is he going to try to haul the CJ in to explain himself in a Gonzales redux? Charge Roberts with perjury for acting contrary to his confirmation testimony?

I would like to be a bug on the wall at the first SC justices conference this fall. I would hope Roberts would, with that wonderful smile of his, ask Breyer, "Have a good time in Aspen, Steve?"

We have heard the ad nauseum complaints of liberals about our Presidents Constitutional assault, which have little or no basis in reality. Yet this is panned by the MSM, Democrats, Spector and their supporters as some type of Constitutional ratiocination? What part of “separation of powers” do they not get and where is the firm Constitutional grounding for such adventurism? Someone please point this out for me.

I remember all the noise about SCOTUS using international law in their decisions last year. When Republicans in Congress started to make noise, I recall Scalia telling the Italian- American club that it was “none of their business” (Congress) and “"No one is more opposed to the use of foreign law than I am, but I'm darned if I think it's up to Congress to direct the court how to make its decisions."

Just a slight difference in tact; Breyer ought to be ashamed.

"Dulce et decorum est pro patria mori"
Contributor to The Minority Report

Surely this will be the buzz at the Supreme Court. One wonders what Anthony Kennedy thinks of Breyer's actions. Perhaps Breyer is pushing Kennedy further in our corner. That would be a real treat.

It seems obvious that the Democrats on Capitol hill are investigating anything and everything. They are currently investigating if the administration fired political appointees for political reasons. Even if proved, nothing is remotely illegal here. We all know they have spent the bulk of their time in office on investigations to hinder the Bush administration and to consolidate power by any means necessary.

Now we have my least favorite Senator, Spector, playing the role of useful idiot for the Democrats. He carries the water and provides them cover for this rash of investigations. I would expect the SCOTUS Justices and their staffs would laugh at the if they were asked to testify. Even if he finds that they misled Congress(they did not), So what? They have lifetime appointments and there is nothing in the world the Senator can do about it. Is he trying to influence the opinions of Justices of the SCOTUS by intimidation? Isn't that illegal? Should we launch an investigation to see how many campaign promises Sen Spector has broken?

Sen. Spector is useless and should have been removed as the Chair of the Judiciary committee when the GOP was in the majority. We would have had many more judges confirmed for sure.

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