By John M. Rogitz

Another circus has begun in the Senate, as has been customary for all modern Supreme Court nominees. With the Kagan hearings now underway, it’s important to understand exactly how judicial ethics will impact her responses.

As we saw last year with Justice Sotomayor, Senators get very frustrated when a nominee does not directly answer their questions. They like to pepper nominees with questions about how the nominee would rule on this issue or that issue, even though many of the Senators are lawyers who know judicial ethics prevent the nominee from answering.

The simple fact is that, whether you’re a “conservative” judge or a “liberal” judge, you are forbidden from commenting on possible legal matters that may come before the Court in the future. Judges are supposed to remain impartial and apply the law to the particular set of facts in any given case.

It is precisely because most legal controversies are highly fact specific that potential justices are forbidden from answering general questions. Kagan should not have to feel external pressure to rule one way or another in the future because she interpreted the Constitution to generally mean X, Y, and Z at her confirmation hearings.

The whole FDA thing from yesterday’s session is a prime example. Kagan said it would be ridiculous for the government to make a law requiring you to eat three fruits and three vegetables per day. What more do you want from her?

But no, Senator Coburn wanted her to interpret the Commerce Clause against that hypothetical law, completely absent any fact-pattern for a particular individual bringing suit. Yet the same conservative Senators that get frustrated with her inability to answer questions like that still want her to, as they repeatedly assert, “only apply the law to the facts.” You can’t have it both ways, guys.

Now this is not to trivialize the Senate hearings. Each nominee for such a distinguished and important position should be vetted. Indeed, the Framers intended that. But these hearings were never meant to include the political grandstanding that now defines them.

In actuality, the Framers wanted a president’s nominee to be approved in most circumstances.  As Hamilton says in Federalist Paper 76:

“It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination…the necessity of their [the Senate’s] concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity” [Emphasis added].

Elections have consequences.  As Federalist Paper 76 points out, the president should be allowed his choice if the individual is qualified.  The Senate confirmation was simply included in the Constitution to prevent unqualified nominees from taking the bench.

However, disagreeing with Kagan’s judicial philosophy does not make her unqualified. Making sure a candidate is qualified, as the Framers intended it, did not mean putting a nominee through weeks of rigorous confirmation hearings. It meant preventing Harriet Miers from becoming a Supreme Court Justice.

Do not interpret my position to mean that I am in favor of Kagan or her judicial activist philosophy. I’d much rather have another Justice Scalia or Justice Thomas. But McCain did not win the election and Kagan is indeed a bright and qualified individual.

Moreover, do not think I am laying blame wholly at the feet of Republicans for creating this circus. Both parties are to blame for what the Senate confirmation hearings have become. But the problem is that what they’ve become is exactly what the Framers did not want to happen.

In the context of why the Senate itself should not have the exclusive authority to nominate and confirm judicial appointments, Hamilton observed in Federalist Paper 76 that:

“Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice [of the assembly]…will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight.”

The Framers were indeed concerned with the type of political bargaining and grandstanding that too often consumes the legislature. The Senate confirmation hearings are yet another example of how our Federal government continues to transform into precisely what the Framers tried to prevent.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

Yesterday, FoxNews reported on two instances where Maryland state police used a two-party consent statute to suppress evidence of their thuggish behavior.  One took place at the Preakness Stakes when the police made a man turn off a camera as they forcefully subdued a woman.  The second incident resulted in criminal charges against a motorcyclist who posted a YouTube video of his traffic stop on a Maryland highway.

This is the same state and statute used by Acorn to sue Hannah Giles and James O’Keefe for their undercover reporting.  Strangely, the ACLU has only now come out against the abuse of two-party consent laws.  I bet Hannah and James wish the ACLU cared about all civil liberties and not just the selective, self-serving ones that further their liberal causes.  They definitely could have used the free legal defense work.

If you have not seen the video posted by the motorcyclist yet, you can watch it here.  The man, who was being stopped for traffic violations, had a gun drawn on him by a plain-clothes police officer even though the video clearly shows a squad car in the background.  Little did the off-duty officer know that the biker had a helmet-cam.

The Maryland motorcycle incident has memorialized yet another cop stepping over the line.  Why would the officer decide to pull his gun instead of his badge, especially with a uniformed officer already on the scene?  That seems more than a bit excessive for a traffic stop, even if the biker was driving very recklessly.

So, what exactly is a “two-party consent” statute?  Well, although they are referred to as “two-party” laws, that term actually refers to any law requiring the consent of every party to a conversation before it can be recorded.  That seems reasonable at first glance, but there are two problems with what Acorn and the Maryland police have been doing.

First, two-party consent laws are by far the minority viewpoint on recording conversations.  One-party consent is all that is required in most states.  That means that if you want to record your conversation, you can lawfully do so regardless of whether the other person knows what you’re doing.  Only a handful of states, including California, have passed these two-party laws.

Ironically enough, those two-party laws were designed to protect the Fourth Amendment rights of citizens and prevent abuses of police power.  They were never meant to be used as an evidence shield to protect police when exercising their authority in an unreasonable manner.  They were also never meant to shield publicly funded organizations from criminal prosecution for importing underage prostitutes.  Why can’t the ACLU get on board with both of those causes?

Second, every two-party consent law requires a “reasonable expectation of privacy” for the law to apply.  More often than not, that means the conversation must occur in a private place.  That is why Acorn’s suit against Giles and O’Keefe was just political grandstanding that had absolutely no merit.

Just like a crowded Acorn waiting room, there’s no reasonable expectation of privacy on a public road.  Moreover, Maryland police officers already routinely record their traffic stops.  I can’t wait to hear the private-place argument the Maryland DA will make against this biker without somehow admitting that the police already habitually violate the same law.

Here in California, you don’t even have to stop for the police unless they are complying with certain requirements that make it apparent they are official law enforcement personnel.  That plain-clothes officer in the video could have just as easily been a car-jacker, especially considering the high violent crime rates in Maryland.

Just like the Acorn suit, the charge filed against the motorcyclist based on the two-party statute completely lacks merit.  It seems that conservatives have finally found some common ground with the ACLU.  That would happen more often if the ACLU was not so transparently inconsistently and political.

COPYRIGHT 2010 JOHN M. ROGITZ

By John M. Rogitz

If you’re heading to the polling booth today, your vote may dramatically alter every subsequent California primary election.  Sounds a bit melodramatic for a June election, doesn’t it?  Well in one respect, it’s not.

Proposition 14 is on today’s ballot.  If passed, this measure will change the way we hold our primaries to determine who makes it on to the November ballot.  Astoundingly, the supporters of Prop 14 believe that limiting the general election to two candidates will be good for democracy.  Yup, if Proposition 14 passes, voters will have only two options for partisan offices in November.

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