Clyde DeWitt Column: Politics, Senators and Judges

What transpired in the United States Senate of late is mind-boggling, but most Americans have no idea what it is or why it is important. Well, it is very important, at least in the immediate future. Bringing this to the trenches in which all of you operate, imagine this situation that likely is familiar to many of you: Your lobbying efforts fail and the city counsel enacts the dreaded ordinance. Your attorney tells you that it will be a close call, but that if you challenge it in court, there is a fair chance it will be struck down as unconstitutional. And as this column has tirelessly trumpeted over its twenty-something years of its existence, you know that if you are going to challenge the ordinance, you are going to do it proactively in federal court and not wait until they come after you where you will be in front of the mayor’s good friend, the local county judge. The most dramatic moment in the entire process comes literally minutes after your attorney files the lawsuit: a case number is assigned to it, something like 14-cv-0132, followed by a dash and two or three letters. Those letters are the initials of the judge to which the case is assigned. And as many of you know well, your odds of winning a close First Amendment case are very largely dependent upon the identity of that judge and which president appointed him or her, especially if it is a more recent appointment. As the Democrats and Republicans have become increasing polarized over the last three decades (probably beginning shortly after Ronald Reagan’s appointment of Sandra Day O’Connor), so too have federal judges. The current political polarization is highly reminiscent of that at the beginning of our country, shortly after the Constitution was adopted. Indeed, during the 1790s, the Republicans and the Federalists were engaged in the same caliber of ideological battle as the Republicans and Democrats of this era. Having control of both houses of Congress and the White House, the Federalists pushed through the controversial Sedition Act of 1798 over fierce Republican opposition. The Act prohibited, among other things, any “writings against the government of the United States,” a concept that would shock the modern First Amendment conscience of even Republicans. Before the Sedition Act expired in 1801, charges had been brought against numerous Republicans, a couple of whom actually went to jail, the Federalist-appointed judges approving the convictions. Ring familiar? The recent 50th anniversary of the assassination of President John F. Kennedy has brought about much conversation about the Kennedys and another dramatic time in history involving federal judges in general and the Supreme Court in particular.  It was 1968, one of the most kinetic years of the 20th century. By the time the year ended, Eugene McCarthy rocked politics by putting a substantial dent in the prospect of the presumed-obvious nomination for another term of President Lyndon Johnson, who soon after shocked the nation when he announced that he would not seek reelection; Martin Luther King was murdered; Robert F. Kennedy began his campaign for president; and there were riots in Chicago at the Democratic convention. By the time the thousands in attendance at the Ambassador Hotel in Los Angeles learned that Bobby Kennedy had won the California primary, it was clear that he was the odds-on favorite to win the Democratic nomination and the general election. The country was sharply divided: the Baby Boomers against the WWII vets. That conflict would be dramatically illustrated a few years later in the television comedy All in the Family. (Remember the verbal tussles between Archie and “Meathead”?) One of Richard Nixon’s trump cards was to play against the societal changes that the Warren Court had brought about—changes that were very disquieting to conservatives, especially in the South. The Court had integrated schools, required free lawyers for downtrodden criminal defendants, created Miranda warnings out of what many claimed was thin air, approved school busing to achieve integration when the bulk of Southerners remembered when busing was used to keep schools segregated. Nixon promised to appoint to the High Court “strict constructionists”—that being a euphemism for judges who would let the executive branch of government have its way and allow things to revert to the “good old days.” June 6, 1968, was the beginning of perhaps the most dramatic turnaround in the American judiciary in constitutional history. When Sirhan Sirhan pulled the trigger at the Ambassador Hotel, Robert Kennedy’s presidential campaign and his life tragically ended. Hubert Humphrey would become the Democratic candidate over the objections of thousands of protesters in Grant Park (including this author), and with nothing approaching the Kennedy mystique, Humphrey would lose to the law-and-order Richard Nixon. In his first term, Nixon would appoint an astounding four justices to the Supreme Court, including William Rehnquist, the most conservative of them, who would eventually be elevated to Chief Justice by President Reagan. The justices Robert Kennedy would have appointed may not have proven to be champions of individual rights to match William O. Douglas, Earl Warren or William Brennan, but they certainly would not have been in Justice Rehnquist’s camp by any stretch of the imagination. Nixon’s four justices plus Justice Byron White (ironically, appointed by President Kennedy) would make the 5-4 majority to allow obscenity prosecutions, handing down the 1973 Miller test that is with us to this day. Nixon’s only real defeat was Roe v. Wade, authored by Justice Blackmun, one of Nixon’s four appointees. Volumes have been written about that! Fast forward to 2013 and cloture. As you probably know now but may not have until recently, cloture is the process of shutting down congressional debate on something in order to bring it to a vote, such as Senate confirmation of a president’s judicial nomination. The Senate rule was that, as a practical matter, it took 60 votes to shut down debate and bring nominations to a vote or, more commonly, even to a hearing.  Since President Obama’s election, Republicans increasingly have filibustered his judicial nominations, as well as his nominations for those cabinet positions that require Senate confirmation. Thus, Republicans created a logjam, leaving an enormous number of judicial vacancies (for an already terribly overworked judiciary), as well as cabinet vacancies. The interesting point is that the 60-vote thing was a Senate rule—and Senate rules can be changed by a simple majority vote. So, the Democrats pulled off what has been called the “nuclear option” when Harry Reid introduced a quickly enacted (by the Democratic majority) change in the rules: no longer can the Republicans indefinitely delay confirmation of the president’s appointments other than for the Supreme Court. As to the latter, the thinking is that nobody is about to filibuster a Supreme Court nominee—don’t bet against it! The immediate impact of this was confirmation of three nominees to the United States Court of Appeals for the District of Columbia, new judges who will upset the Republican majority of that important court. Indeed, it probably is the second most important court in the country after SCOTUS, both because it reviews executive regulatory decisions and because it is traditionally a holding place for potential Supreme Court nominees. If the Republicans take back the Senate this coming November, it will be interesting to see what happens. The nominating process could then resume gridlock by way of the Republicans simply not scheduling a vote on any nominee. On the other hand, it is conceivable that the Democrats will retain the White House for eight years after Obama exits—16 years of Democratic presidents, which has not happened in any of our lifetimes! Keep your eyes on the 2014 Senate races! Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney. This article originally ran in the January 2014 issue of AVN magazine.