Separate and Equal Branch?

Last weekend when talking on CNN about raising the debt ceiling to avoid a shutdown of the government, NY Senator Chuck Schumer mis-spoke about the three branches of government..."the House, the Senate and the President." Embarrassing when hopefully any one of my students could have taken him to task on the sound-byte blooper.

But if he followed the latest news of the Judicial Branch, Schumer may have wanted to forget the political actions that should concern those who want a "Separate, But Equal," Federal Judicial Branch that protects our Rule of Law.

First,

(From Jonathan Cohn, in the New Republic on the Federal Court ruling that the Affordable Health Care Act was unconstitutional)

Did Roger Vinson, the federal judge who on Monday ruled the Affordable Care Act unconstitutional, have a particularly conservative take on politics as well as the law? His ruling certainly suggests as much. There’s what looks like a shout-out to the Tea Party — specifically, a reference to the American Colonists’ outrage over the tax on tea. (Page 42.) There’s the gratuitous reference to General Motors as “partially government-owned.” (Page 45.) And there’s the use of President Obama’s campaign rhetoric against the law Obama now supports. (Page 68).

Nor is the first time a judge invalidating the Affordable Care Act may have tipped his political hand. Henry Hudson, the federal judge who issued a narrower ruling against the law late last year, noted in his decision that the bill was rushed through the legislative process — which is a strange way to describe a law nearly fourteen months in gestation, unless you are trying to argue there was something fundamentally illegitimate about the process that produced it.

But perhaps the clearest indicator of bias in the decisions against the Affordable Care Act is the gist of the decisions themselves. For generations, conservatives have championed “judicial restraint.” If judicial restraint means anything, it means deferring to the Congress on matters of policy preference — like, for example, whether it’s better to run a national health insurance system with a system of regulated private insurance (which is what people will get with the Affordable Care Act) rather than via a single-payer, government-run plan (which is what the elderly already get with Medicare). But if these these decisions by Judges Vinson and Hudson carry the day — and, please remember, two federal judges have already ruled the other way — they would effectively take that discretion away from the Congress.

//blog.cagle.com/2011/02/shocker-a-court-decision-tinged-with-politics/

Next,

The NY Times reports on Virgina Thomas, the wife of Supreme Court Justice Clarence Thomas, setting up a "Conservative Lobbying Shop" in Washington, D.C. to have "hands-on operational duties on Capitol Hill:

WASHINGTON — The wife of Justice Clarence Thomas, who has raised her political profile in the last year through her outspoken conservative activism, is rebranding herself as a lobbyist and self-appointed “ambassador to the Tea Party movement.”

Virginia Thomas, the justice’s wife, said on libertyinc.co, a Web site for her new political consulting business, that she saw herself as an advocate for “liberty-loving citizens” who favored limited government, free enterprise and other core conservative issues. She promised to use her “experience and connections” to help clients raise money and increase their political impact.

Ms. Thomas’s effort to take a more operational role on conservative issues could intensify questions about her husband’s ability to remain independent on issues like campaign finance and health care, legal ethicists said.

Justice Thomas “should not be sitting on a case or reviewing a statute that his wife has lobbied for,” said Monroe H. Freedman, a Hofstra Law School professor specializing in legal ethics. “If the judge’s impartiality might reasonably be questioned, that creates a perception problem.”

Ms. Thomas’s founding of her own political consulting shop, Liberty Consulting, was first reported Thursday by Politico, which said she had begun reaching out to freshmen Republicans in Congress.

The move comes a few months after she gave up the top spot at Liberty Central, a conservative Web site that she founded in 2009 and that has strong links to the Tea Party movement.

An anonymous $500,000 donation to start up Liberty Central came from Harlan Crow, a Dallas real estate investor and Republican financier, Politico reported.

Mr. Crow, reached by phone Friday, would not say whether he was the source of the money. “I disclose what I’m required by law to disclose,” he said, “and I don’t disclose what I’m not required to disclose.”

Ms. Thomas did not respond to telephone and e-mail requests for an interview on Friday. The Daily Caller reported in December that she had said in an interview that she was looking forward to a new role involving “lobbying on Capitol Hill” and a variety of other hands-on operational duties.

//www.nytimes.com/2011/02/05/us/politics/05thomas.html?_r=1