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More Laws The Republicans Don’t Understand

The separation of power in our government, the establishment of separate but equal branches, was the most radical thing our Constitution did. The writers of the Constitution used the term “checks and balances” to define why they were rejecting the time-honored practice of the majority party in the lege controlling the executive and judicial. Republicans, who are constantly claiming the President Obama doesn’t respect or obey the Constitution, don’t get it. They want to interfere with the specifically defined powers of the Supreme Court.

Supreme Court justices are not bound by the same ethics rules as other Federal judges. That’s why Justices Clarence Thomas and Antonin Scalia get away with sitting on cases where they have personal interests in the outcomes – like Mrs. Justice Thomas working for the people behind Citizens United. Chief Justice Roberts did not ask Justice Thomas to recuse himself from that case, even though his presence on the bench for it was about the most egregious breach of judicial ethics in decades. There are efforts underway to have Thomas retroactively recused from the case, which would effectively nullify it by causing a tied vote.

Now, Republicans want to make sure that Justice Elena Kagan is recused from the upcoming health care law cases. They can’t count on Justice Anthony Kennedy voting with the Republicans on the Court, so they want to tilt the balance in their favor by removing a liberal justice. It is a really, really dumb move. If they remove Kagan and Kennedy does what he is known for – voting with the law not with the ideology, they still lose. They will have forced a tied vote which means the lower court rulings, which overwhelmingly favor most of the bill, would be allowed to stand.

So, while on the surface it appears to be an attempt to stack the deck in favor of the Republicans, it is much more likely to be an attempt to simply embarrass Kagan because the Democrats have embarrassed Thomas and Scalia.

The Republicans in the House have demanded that Attorney General Eric Holder hand over to them any documents relating to Justice Kagan’s time as solicitor general. Justice Kagan has stated that she had little or nothing to do with the creation of the Affordable Care Act, but the Republicans want to prove that she is a liar.

On Thursday, Holder told them they are out of line. The separation of powers does not give the House the right to demand materials from the executive that relate to the judicial and they absolutely don’t have the power to demand recusal. Only Chief Justice Roberts has that power. Holder informed them that any requests for information about a potential conflict would be “best brought” by the plaintiffs or defendants in the case, not a third party. House Judiciary Committee Chairman Lamar Smith wants the Justice Department to provide meeting schedules and documents as well as allow access to DoJ employees for questioning. He has no right to them, he has no authority to demand them and the whole thing is just a ploy to make an issue of Kagan to the Republican base who are even less familiar with the Constitution than the Republican House members are.

Kagan has previously recused herself from cases where she had worked on the law while working in the administration. She has done so without her recusal being requested by anyone.

Those who cannot win a battle fairly will cheat. That is the phrase that has come to describe the Republican Party in the last year. That’s a far cry from being the Party of Lincoln.

　

　

　

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