As Kagan Joins, Federal Courts' Roles Rise In Importance

This weekend, Elena Kagan was sworn into the elite club of 112 who have served on the U.S. Supreme Court. The moment was duly noted across all news media, in large part because Kagan is just the fourth woman in the club.

But journalists also pounce on new appointments to the High Court in part to correct our perennial neglect of the judicial system. By far the preponderance of political journalism spilling out of Washington is devoted to the White House and Capitol Hill. As a rule, we pay attention to the courts when they interfere with something the other branches are trying to do.

This summer, federal judges have once again been horning in on issues of great interest and high stakes. Gay marriage. Immigration. The health care law. The post-BP moratorium on deepwater drilling. Each of these decisions will be reviewed by federal courts of appeal and ultimately by the U.S. Supreme Court.

Chief Justice John Roberts and new Justice Elena Kagan after her swearing-in on Aug. 7.

hide captionChief Justice John Roberts and new Justice Elena Kagan after her swearing-in on Aug. 7.

Handout/Getty Images North America

But for that reason alone they will be generating news, inflaming public opinion and determining the direction of our politics, economics and culture.

Although most of the federal judiciary labors in lofty obscurity, at moments such as these one man or woman in a black robe can make an incalculable difference. Governors and senators and others in public life can only dream of such moments of influence.

Consider that on one day last week, one federal judge in San Francisco issued an opinion that invalidated the best known voter initiative of recent years: Proposition 8 on the 2008 California ballot, which overturned the state's recognition of gay marriage.

Presenting extensive findings of fact from the trial before him, U.S. District Court Judge Vaughn Walker noted that defenders of Proposition 8 had scarcely attempted to refute these findings. In fact, the Prop 8 defense in its entirety was so cursory as to suggest its attorneys scarcely thought the trial court level was important. Their eye was on the friendlier venues of the U.S. Court of Appeals for the 9th Circuit and the U.S. Supreme Court.

But if liberals and libertarians were heartened by Walker, they were equally gratified one week earlier by the ruling of U.S. District Court Judge Susan Bolton, who kicked out the key pillars of an Arizona law attempting to crack down on illegal immigration. Bolton found fault in that law's provisions allowing state and local officials to question the immigration status of people they deemed suspicious — for whatever reason. The requirement that residents who ran afoul of such suspicion produce papers proving their immigration status was also spiked by the judge.

Bolton, like Walker, knew well how every word she put to paper would be scrutinized, analyzed and politicized. No doubt the same could be said for other judges bringing a more conservative viewpoint to bear on equally significant issues in recent days.

First of these was federal District Court Judge Martin Feldman of Houston, who spiked the administration's six-month moratorium on oil-and-gas drilling in the Gulf of Mexico. The administration may well have thought the argument for shutting down new explorations in the Gulf was open and shut in the wake of the BP Deepwater Horizon debacle. But if the shutdown was a no-brainer for environmentalists and industry critics, business folks in the Gulf states seemed to see it primarily as a short-term job killer and a long-term cloud over the economic future of the region.

Liberals were swift to note that Judge Feldman had a portfolio of stock holdings in the oil and gas sector, one that might well suffer in the event of a long-term slowdown in Gulf energy production. They also noted that the relevant federal appeals court, the 5th Circuit in New Orleans, was dominated by judges with business interests much like Feldman's.

But the judge's ruling stands, and is likely to stand longer than the Obama administration stands behind its six-month moratorium.

Similarly, in the same week as the Prop 8 ruling, supporters of the Obama health care law were incensed that U.S. District Judge Henry Hudson in Richmond had approved Virginia's standing to sue the federal government over the enforcement of provisions in that law. Defenders of the new health law had hoped that Hudson might uphold the historic principle of federal pre-eminence, a central issue since the founding of the Republic.

Many have noted the symbolic power of having this challenge emanate from Richmond, the capital of the Confederacy in the 1860s and the epicenter of "massive resistance" to the school integration decision of the Supreme Court in the 1950s. State's rights may be a heading in a history textbook for some parts of the country, but they remain a mainstay of current events in the South.

Talk of nullification — the asserted right of states to ignore federal laws as they choose — has re-emerged as President Obama has pursued an activist agenda. In Texas and Tennessee, candidates for statewide office have allowed references to secession to enter their campaign vocabularies.

While no one expects another Civil War, we are clearly heading into the most significant round of state-federal confrontations we have seen since the 1960s. And that struggle has already been joined in courtrooms around the country, where it will largely be fought.

Small wonder then that Republicans in the Senate have made resistance to the judicial nominees of the new president such a salient element of their mission in these past 18 months.

To be sure, the president has seen both his nominees to the Supreme Court approved with little suspense. But the Senate has yet to allow a vote on most of the 85 nominees he has sent up for federal judgeships at the district and appeals court levels.

Same old partisan story? Not quite. The last five presidents, three of them Republicans, have seen four out of five of their appointments confirmed.

Democrats under Majority Leader Harry Reid have not been willing to call the minority's bluff on this tactic by demanding real-time filibusters with all-night sessions and cots in the lobbies. No one wants the delay, the drama or the indignity.

But as the number of Democrats in the Senate shrinks in the November election, those who remain will need to reconsider what means are necessary to install their president's choices in the increasingly powerful job of judge.

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