The American Constitution Society has just released a big report on the effects of post-Citizens United spending on judicial elections, specifically finding that judges who survive expensive, ad-heavy elections are “less likely to vote in favor of criminal defendants.”
As it happens, an example of what happens when big outside spending groups take an interest in state judicial elections is unfolding right now in Montana.
We’ve been following how Religious Right and pro-corporate groups have been getting involved in a Montana state supreme court race, in which a former solicitor general with a right-wing record is trying to topple a sitting justice and flip the ideological balance of the court.
Last month, the anti-gay, anti-choice Family Research Council raised money for challenger Lawrence VanDyke at a Values Voter Summit fundraiser. A couple of weeks later, a Montana offshoot of the Republican State Leadership Committee — an outside spending group bankrolled by corporations including the Reynolds tobacco company and Koch Industries — dropped $110,000 on TV ads attacking VanDyke’s opponent, Justice Mike Wheat.
And now, according to the Missoulan, not only has the RSLC now spent $330,000 supporting VanDyke’s candidacy, but it has been joined in the fight by Americans for Prosperity, the Koch-funded group that has since the Supreme Court’s Citizens United decision spent millions of dollars to influence elections.
AFP is spending $85,000 running ads that accuse Wheat of being an “extreme” partisan…citing his votes on bipartisan bills as a state legislator. In an interview with the Missoulan, Wheat called the ads “garbage”:
The ads say Wheat, a justice on Montana’s high court since 2010, “has a history of supporting extreme, partisan measures,” citing his votes as a state senator for a 2003 sales tax package and for an increase in hunting and fishing license fees in 2005, and his 2012 dissent in a Supreme Court ruling upholding natural gas well permits.
“Our (intent) is to educate voters on the positions that Mike Wheat has taken in the past and hold him accountable for those positions,” Lahn said.
Wheat, in an interview, called the ad “garbage” and said it has little or nothing to do with the type of a justice he’s been or will be.
The ad sponsor “is just one of the Super-PACs funded by the Koch Brothers, who want you to believe it’s only for `educational’ purposes,” Wheat said. “It’s not education at all; it’s pure politics.”
In addition to $275,000 combined that Wheat and VanDyke have reported raising for their campaigns, the race has seen spending now by four outside groups, including AFP-Montana.
Two other groups are supporting VanDyke, including the Republican State Leadership Committee, which reported Thursday it’s spent $330,000 on TV ads and mailers, and one group is supporting Wheat.
Lahn said AFP-Montana initially is spending $85,000 for its ads criticizing Wheat.
The AFP ad says Montanans “deserve a fair and impartial Supreme Court” and urge voters to call Wheat “and tell him to keep his extreme politics out of the Montana Supreme Court.”
Among other things, the ad refers to Wheat’s 2003 vote as a senator for a sales tax package that also reduced property and income taxes, and his 2005 vote for a bill increasing hunting and fishing license fees.
The sales tax measure passed the Senate with bipartisan support but died in the House; the hunting and fishing license bill passed with bipartisan support.
Mark Creech, director of the Christian Action League of North Carolina, wrote in the Christian Post yesterday that he was “heart-broken” (sic) by the federal court decision striking down North Carolina’s marriage equality ban, calling the decision “a terrible tragedy — an evil — an injustice in our day.”
Creech took some comfort, however, from this month’s lunar eclipse, during which God told him that things will get better. “God makes all things beautiful in its appropriate time,” he writes, including “even death, war, killing, the escalation of wickedness, and yes, even the atrocity of legalizing same-sex marriage.”
October 10th marks the infamous day for the Tar Heel state. Judge Max O. Cogburn in Asheville declared in accord with a 4th Circuit Court ruling that North Carolina's marriage amendment was unconstitutional. The decision was not only egregious, but an act of judicial supremacy. I readily admit I was heart-broken, but it wasn't as though I was altogether unprepared.
The Lord had spoken to my heart two days before Cogburn ever slammed down his gavel. With the Supreme Court's inaction and what it would mean heavily on my mind, I awakened about 4:00 a.m. on Wednesday, October 8th, and couldn't go back to sleep. Restless, I got up and piddled about the house and made myself an early breakfast. I noticed the local television news was reporting a lunar eclipse was taking place. I thought to myself, "I want to see that." So, in my pajamas and housecoat, I made my way outside to see this glorious display in the heavens. I must say the sight of it was other-worldly, awesome, and even breathtaking.
Then, while watching the earth's shadow fall across the moon's surface, I heard the sweetness of God's voice. "See Mark," the Lord said, "the light may be eclipsed for a time, but be assured the light of God always returns to shine."
To all of my friends and colleagues in North Carolina and other states negatively impacted by the US Supreme Court's indecision – a choice that opened the door for gay marriage in 11 more states. Let me say that if you've been like me, confused, depressed, and sometimes even angry at the recent turning of events, then take a lesson from the lunar eclipse: "The light may be eclipsed for a time, but be assured the light of God always returns to shine."
What has happened is a terrible tragedy – an evil – an injustice in our day. But God makes all things beautiful in its appropriate time, meaning even death, war, killing, the escalation of wickedness, and yes, even the atrocity of legalizing same-sex marriage. God turns it. He makes it all work beautifully to accomplish His purposes in the end. We may not understand it. Nevertheless, He remains lovingly sovereign over it. We can trust Him in all things.
The light may indeed be eclipsed for a while, but the brightness of God's light will always return to shine.
Last week, we reported on the quiet effort of national right-wing groups to, in the words of the Family Research Council, “flip” the Supreme Court of Montana by electing former state solicitor general Lawrence VanDyke, who has indicated that he will be friendly to business interests and social conservative causes.
We first heard of VanDyke’s campaign for the officially nonpartisan office at last month’s Values Voter Summit, where the Family Research Council’s political action committee had decided to highlight the race at a $100-a-head fundraiser featuring Rick Santorum, Lousiana Gov. Bobby Jindal and a number of Republican members of Congress.
Yesterday, VanDyke’s campaign issued its fundraising report for the period that included the FRC fundraiser. In the period, the campaign brought in $48,000, nearly doubling its supply of cash. It’s impossible to tell how much of that came from the FRC’s fundraiser — much of it came from Montana residents and out-of-state attorneys but FRC’s impact is shown in a few notable contributions.
The FRC Action PAC itself contributed $320 to VanDyke’s campaign, the maximum contribution allowed so far. William Saunders, the top lawyer at the anti-choice group Americans United for Life, also contributed $320, while Gary McCaleb, an attorney for the Alliance Defending Freedom contributed $200. An organizer for the Koch group Americans for Prosperity also kicked in $200.
Although we can’t know the impact of the FRC’s fundraiser — and we can't know for sure that these contributions stemmed from the event — these numbers illustrate the fact that in VanDyke, Corporate Right and Religious Right activists throughout the country have found common cause in a little-noticed but pivotal state court race.
Conservative legal advocates from throughout the country have been quietly pouring money into a Montana state supreme court race, hoping to topple a court majority that has bucked the U.S. Supreme Court on campaign finance issues and could soon have a voice in cases with national implications involving abortion rights and LGBT equality.
The Right’s chosen candidate is Lawrence VanDyke, a former state solicitor general with a perfect pedigree for pro-corporate and Religious Right donors. Not only has VanDyke indicated his support for the U.S. Supreme Court’s dismantling of campaign finance laws and lamented that the current Montana high court is insufficiently “pro-business,” but, in his position as solicitor general, steered the state government toward taking positions against abortion rights, marriage equality and gun restrictions in other states.
What's more, in his writings as a law student, VanDyke was unguarded in his social conservative views, fretting about same-sex marriage, endorsing discredited “ex-gay” therapy and defending the teaching of anti-scientific “Intelligent Design” in public schools.
The Right Sees An Opportunity In Montana
At last month’s Values Voter Summit in Washington, the Family Research Council’s political action committee hosted a private $100-a-head reception featuring conservative luminaries including Rick Santorum, Louisiana Gov. Bobby Jindal, GOP congressmen Steve King, Vicky Hartzler and Mark Meadows, and congressional candidate Dave Brat of Virginia, who unseated former House Majority Leader Eric Cantor in an upset primary election this year.
A flyer for the event announced that along with those national Republican politicians, FRC would be “showcasing a very important State Supreme Court candidate, Lawrence VanDyke of Montana, who we hope can flip the court in that state.”
VanDyke’s presence on the fundraiser’s roster was telling. As FRC’s flyer made clear, a VanDyke victory would change the ideological balance on a court that has been a thorn in the side of opponents of campaign finance reform and could soon be facing nationally watched cases on abortion rights and marriage equality.
VanDyke has not yet submitted a campaign finance report showing how much money, if any, FRC was able to bundle for him at the fundraiser, and his campaign did not respond to our inquiry about whether he was personally present at the Values Voter event. But a review of VanDyke’s campaign finance reports shows that his candidacy has attracted keen interest from out-of-state donors, including some of the country’s leading conservative legal activists.
[UPDATE: VanDyke's Oct. 20 fundraising report revealed some of the contributions from FRC and its allies.]
Since filing for the race to unseat sitting Supreme Court Justice Mike Wheat in March, VanDyke has raised about $78,000, more than one-third of which — roughly $29,000 — has come from 114 individual out-of-state donors. By contrast, Wheat has raised just under $85,000 for his reelection bid, only $1,100 of which came from just five out-of-state donors.
Among those who have contributed to VanDyke’s campaign are recognizable names in conservative legal circles. Kelly Shackelford, president of the right-wing legal group Liberty Institute (a major sponsor of the Values Voter Summit) contributed $100, while another top Liberty Institute official, Hiram Sasser, gave $320, the maximum gift allowable as of VanDyke's last fundraising report. Carrie Severino, chief counsel of the Judicial Crisis Network and a Harvard Law School classmate of VanDyke’s, and her husband Roger also each maxed out with $320 contributions. Thomas Spence, an official at the conservative Regnery publishing house also sent the maximum contribution to VanDyke’s campaign. Two employees of the Arizona-based Alliance Defending Freedom have together contributed $370. Christopher Murray, a lawyer who served on Mitt Romney’s presidential campaign, also contributed $320.
Nearly $7,000 of VanDyke’s contributions have come from employees of the law firm Gibson Dunn, where Vandyke worked before entering public service. That includes $320 each from Theodore Olson, the conservative attorney argued the Citizens United case (but who has become better known as a marriage equality advocate), and controversial Bush appeals court nominee Miguel Estrada. VanDyke’s campaign also received $320 each from Eugene Scalia — the son of Supreme Court Justice Antonin Scalia and a Wall Street reform-buster in his own right — and his wife.
Montana’s Cowgirl Blog notes that prominent Montana social conservatives Greg and Susan Gianforte — who fund creationist efforts and support anti-gay policies — have also each contributed the maximum amount to VanDyke’s campaign. He has also received the maximum contribution from the Montana Gas & Oil PAC and — in the form of an in-kind gift of catering — from the PAC’s treasurer, Dave Galt.
Cowgirl Blog also notes that VanDyke got a major assist last month from a newly created group called Montanans for a Fair Judiciary, which sent a statewide mailer in favor of his candidacy. The group, which was registered last month, is staffed by a former Montana GOP official and a corporate lobbyist for oil and gas clients, among others.
And just last week, a Washington, D.C.-based group called the Republican State Leadership Committee Judicial Fairness Montana PAC — an offshoot a national group funded by big business interests including the Reynolds tobacco company and Koch Industries — bought $110,000 worth of television ads supporting VanDyke and slamming Wheat as soft on crime. The group has also been mailing out leaflets accusing Wheat of siding with “environmental extremists.”
All of this attention from national activists and corporate backers has caught the attention of a group of six retired Montana Supreme Court justices, who signed a letter last week calling VanDyke an “unqualified corporate lawyer,” adding, "Given [his] background, Mr. VanDyke is an excellent corporate pick although that is obviously not good news for Montanans.”
The letter from the judges notes that VanDyke has received the maximum allowable campaign contributions from numerous out-of-state lawyers who represent major corporations, including more than 20 at the Gibson firm - including at least one who represented Citizens United.
"Corporations are buying judicial races because they want judges who will not hold them accountable," the draft letter from the retired justices says. "If the disinformation they are spreading successfully manipulates Montanans into electing an unqualified corporate lawyer, we will lose our fair and impartial court."
‘Changing The Face of the Montana Supreme Court’
While VanDyke’s personal connections seem to behind quite a bit of his financial support from out-of-state conservative leaders, his featured spot at the Values Voter Summit hints that the conservative legal movement and the Religious Right see an opportunity in his candidacy.
Montana conservatives have made no secret of their desire to pack the state Supreme Court with justices in their ideological mold. Last year, the Great Falls Tribune published leaked emails between conservative Republicans in the state senate discussing a “long term strategy” for displacing more moderate Republicans in the state legislature and “changing the face of the Montana Supreme Court.”
One lawmaker wrote of the need to “purge” the party of moderates, after which “a new phoenix will rise from the ashes.”
In 2012, Montana conservatives were able to elect the likeminded Laurie McKinnon to the state Supreme Court thanks in part to a dark money group called the “Montana Growth Network” run by a Republican state senator that spent at least $42,000 on her campaign — more than the candidate spent herself. The “Montanans for a Fair Judiciary” group that has been campaigning for VanDyke is linked to the firm that was employed by the “Montana Growth Network” to boost McKinnon.
National conservative groups have good reason to take an interest in the race as well.
Montana’s Supreme Court gained national attention in 2011 when it bucked the U.S. Supreme Court on the issue of campaign finance regulation, ruling that the Supreme Court’s 2010 decision in Citizens United did not invalidate Montana’s century-old ban on corporate spending in elections. The 5-2 decision, in which Justice Wheat joined the majority, openly defied the Supreme Court’s controversial ruling. One of the two dissenting justices wrote that the state court must follow the high court’s precedent but used the opportunity to excoriate the Supreme Court for its Citizens United logic. On appeal, the Supreme Court summarily reversed Montana’s opinion, ending the state’s corporate spending ban.
Montana’s Supreme Court may soon also be in the center of the legal debates on same-sex marriage and abortion rights. State anti-choice groups have indicated that they might challenge Montana’s abortion clinic buffer-zone bill in the wake of the Supreme Court’s striking down of a similar bill in Massachusetts. In addition, marriage equality cases are working their way through both state and federal courts in Montana.
A Movement Candidate
Although Montana’s judicial elections are ostensibly nonpartisan, VanDyke’s resume makes him seemingly a perfect candidate for conservative activists hoping to drag the state's high court to the right. At Harvard Law School, VanDyke was active in the conservative Federalist Society and wrote an article for the school’s law review favorably reviewing a book arguing for allowing public schools to teach anti-scientific Intelligent Design.
In an article for another school publication, VanDyke lamented that courts in Canada had been “forcing same-sex marriage on the populace” and warned of a “trend of intolerance towards religion as homosexual ‘rights’ become legally entrenched.” In the same article, he cited a study supporting debunked “ex-gay” therapy to support the “view that homosexuals can leave the homosexual lifestyle.” (The author of that study has since recanted.)
After graduating from law school, VanDyke clerked for D.C. Circuit Judge Janice Rogers Brown, perhaps the most stridently conservative of that court’s activist pro-corporate wing, known for her extreme opposition to government regulation and her writing of a prequel to the Supreme Court’s Hobby Lobby decision. After a stint at Gibson Dunn, VanDyke became an assistant solicitor general in Texas and was named solicitor general of Montana early last year.
In public statements, VanDyke has indicated that he would have sided with the U.S. Supreme Court on Citizens United, defending the decision in a debate last month. And although his race is officially nonpartisan, VanDyke has made it very clear which side of the aisle he falls on, accusing his opponent of judging “like a liberal Democrat” and being “results-oriented” in his rulings — a loaded accusation favored by conservative activists.
VanDyke has also hinted that he would be more favorable to business interests on the court, touting an endorsement from the Montana Chamber of Commerce and saying, “I don’t think anybody who follows our court thinks it’s a pro-business court.” On his website, he backs efforts to “produce and preserve” natural resources, which he contrasts with his opponent's siding with preservationists in a dispute over drilling gas wells. In September, he spoke at a “Coal Appreciation Day” sponsored by a coal industry group.
VanDyke’s website also touts his support for the death penalty and an expansive interpretation of the Second Amendment, noting his work as state solicitor general defending a bill that would have invalidated federal firearms regulations on weapons manufactured and kept in Montana. (The law was ultimately struck down in federal court). In that position, VanDyke also pushed for Montana signing on to Alabama briefs in favor of overturning semiautomatic weapon bans in New York and Connecticut. At the time, he bantered over email with Alabama’s solicitor general, Andrew Brasher, about shooting elk with semi-automatic firearms, attaching a picture of himself hunting with “the same gun used by the Navy Seals.”
VanDyke recently announced that he had been endorsed by the National Rifle Association.
In his role as solicitor general, VanDyke also worked on efforts to oppose same-sex marriage and abortion rights, including signing on to amicus briefs filed in other states.
VanDyke, meanwhile, is running on the message that he will follow “the law, not politics” and accusing Justice Wheat of being overly partisan. In the same interview in which he lamented that the current state supreme court was unfavorable to business interests, he said, “I have not promised anybody that I’m going to be a pro-business judge or that I’m going to be a conservative judge...I’m going to be a fair and balanced judge.”
Judicial Elections Draw More And More Big Money
Last year, Justice at Stake reported on the fast increase of spending in judicial elections, leading to judicial races seeming “alarmingly indistinguishable from ordinary political campaigns” and blurring “the boundaries that keep money and political pressure from interfering with the rule of law.”
Part of this increase was attributable to the 2010 Citizens United decision, which allowed outside groups to spend unlimited amounts supporting and opposing candidates. In the case of judicial elections, those candidates could be the ones deciding on the future of that very campaign spending.
It’s no wonder that the corporate right and the Religious Right have joined forces to back VanDyke’s candidacy. A little-noticed nonpartisan race in Montana could prove to be an effective long-term investment for a movement that’s trying to solidify a pro-corporate grip on the courts and win back lost legal ground abortion rights and LGBT equality.
This post has been updated to clarify the status of marriage equality cases in Montana.
In an interview with Iowa-based conservative talk show host Steve Deace on Monday, former Arkansas Gov. Mike Huckabee repeated his recommendation that governors simply ignore the Supreme Court’s decision to let stand lower court rulings legalizing marriage equality in several new states, adding that state governments should have also ignored Roe v. Wade and the Supreme Court rulings banning school-sponsored prayer.
When Deace pressed him on the “maelstrom” that would be set off if state governments simply ignored court rulings on marriage, Huckabee responded that it was in fact the courts that have set off a “constitutional crisis” by ruling in favor of marriage equality.
“I look back to 1973,” he said, referring to the year in which Roe v. Wade was decided, “and I’m wondering what would have happened if the two branches of government, the executive and the legislative, simply said, ‘We appreciate your opinion, court, but now if states wish to empower that, I guess they can do so, but until that happens we’re not automatically going to go killing 55 million babies over the next 40 years.’”
In cases such as Roe and rulings in favor of marriage equality and church-state separation, Huckabee said, elected officials should have said, “Well, the courts have spoken and it’s an important voice, but it’s not the voice of God and the Supreme Court isn’t God” and simply ignored the courts’ rulings.
Earlier in the interview, Deace insisted that a drop in support for LGBT rights reported in a recent Pew poll happened because “people are seeing this really isn’t about consensual love…this is really about in the end using the coercive force of government to get you to abandon your own moral conscience.”
Huckabee agreed, adding, “It’s never been an honest situation where those who were advocating the most extreme levels of changing our culture were sincere and straightforward and I don’t think we’ve seen the last of it.”
He added his hope that in reaction to yesterday’s Supreme Court decision, “somewhere there will be a governor who will simply say, ‘No, I’m not going to enforce that’” and order county clerks not to issue marriage licenses to same-sex couples.
Sen. Ted Cruz has spent the past several months railing against a proposed constitutional amendment to undo the Supreme Court’s decisions in Citizens United and related campaign-finance cases, which would restore to Congress and the states the ability to “set reasonable limits” on election spending.
Cruz has gone into full hyperbole mode over the amendment, claiming that the campaign to narrowly roll back what many legal experts believe is an erroneous interpretation of the First Amendment is in fact an effort to “repeal the First Amendment,” silence pastors and imprison old ladies.
So, of course, it was no surprise at all yesterday to see Cruz himself proposing to amend the Constitution to reverse what he sees as an erroneous interpretation by the courts, this time on the issue of marriage. Roll Call reported on Cruz’s reaction to the Supreme Court’s "tragic" decision yesterday to decline hearing any marriage equality appeals, thus letting same-sex couples in several states get married:
While most Republicans shied away from commenting Monday on the Supreme Court’s historic decision to let stand a slew of lower court rulings legalizing gay marriage, Sen. Ted Cruz torched the court’s decision.
The Texas Republican called the decision “tragic and indefensible” and said he would introduce a constitutional amendment that would ensure states can ban gay marriage.
“By refusing to rule if the States can define marriage, the Supreme Court is abdicating its duty to uphold the Constitution. The fact that the Supreme Court Justices, without providing any explanation whatsoever, have permitted lower courts to strike down so many state marriage laws is astonishing,” he said in a statement.
“It is beyond dispute that when the 14th Amendment was adopted 146 years ago, as a necessary post-Civil War era reform, it was not imagined to also mandate same-sex marriage, but that is what the Supreme Court is implying today. The Court is making the preposterous assumption that the People of the United States somehow silently redefined marriage in 1868 when they ratified the 14th Amendment,” he said.
“Nothing in the text, logic, structure, or original understanding of the 14th Amendment or any other constitutional provision authorizes judges to redefine marriage for the Nation. It is for the elected representatives of the People to make the laws of marriage, acting on the basis of their own constitutional authority, and protecting it, if necessary, from usurpation by the courts.”
For the record, here is the section of the 14th Amendment that courts have been relying on to extend marriage rights to same-sex couples:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Yesterday, People For the American Way members participated in a telebriefing to discuss the Supreme Court’s upcoming term and to preview some of the important cases the Court will be hearing this year. The call was kicked off by PFAW President Michael Keegan and moderated by PFAW Director of Communications Drew Courtney. PFAW’s Senior Legislative Counsel Paul Gordon reviewed highlights of his recent report previewing the Supreme Court’s upcoming term and answered questions from members. Also on the call and answering questions were Senior Fellow Elliot Mincberg and Executive Vice President Marge Baker.
Among the cases Gordon previewed were Young v. UPS, Integrity Staffing Solutions v. Busk, Mach Mining v. EEOC, Holt v. Hobbs, and Alabama Democratic Conference v. Alabama / Alabama Legislative Black Caucus v. Alabama. The issues addressed in these cases range from employment discrimination and workers’ rights, to religious liberty and voting rights.
He also discussed potential cases that the Court could still add for this term, which included cases on marriage equality, the Affordable Care Act, and contraception coverage by religious nonprofits—the “sequels to Hobby Lobby.”
Members’ questions focused on how the country can move forward to change some of the more damaging decisions like Citizens United, and what each person could do to effect change and impact the courts. Emphasizing what is at stake this election, both PFAW President Michael Keegan and Gordon called on people to vote in November because “when you vote … for the Senate, you are voting for the next Supreme Court justice.”
Listen to the full audio of the telebriefing for more information.
A few weeks ago, Justice Ruth Bader Ginsburg was speaking to students at the University of Minnesota Law School when she made the rather straightforward observation that if 6th Circuit Court of Appeals follows other recent court decisions and strikes down gay marriage bans in Kentucky, Michigan, Ohio and Tennessee, then the prospects of the Supreme Court taking up the issue of marriage equality would be less likely in the near term.
The reasoning behind this statement is that if appellate courts consistently strike down such bans, then the Supreme Court will not need to get involved right away whereas, if the 6th Circuit were to uphold such bans, that would create a conflict among recent appellate rulings and so, as Ginsburg said, "there will be some urgency" for the Supreme Court to take up with issue in order to address those conflicting rulings.
There is nothing controversial or improper about this obvious observation, but anti-gay Religious Right groups have seized upon it to launch a campaign demanding that Ginsburg recuse herself from any Supreme Court case involving the issue of marriage equality on the grounds that she has violated the Judicial Code of Conduct by "making public comment on the merits of a pending or impending action."
As Liberty Counsel, which first launched this effort, declared:
“In casting a vote publicly before the case is even heard, Justice Ginsburg has violated the Judicial Code of Conduct,” said Mat Staver, Founder and Chairman of Liberty Counsel. “It is now her duty to recuse herself from cases involving same-sex marriage.”
According to Canon 2 of the Judicial Code of Conduct, “A judicial employee should not lend the prestige of the office to advance or to appear to advance the private interests of others.”
Canon 3(D) declares, “A judicial employee should avoid making public comment on the merits of a pending or impending action.”
“Justice Ginsburg’s comments implied that the merits of the state constitutional amendments defining marriage as one man and one woman were such that the Supreme Court would have to overturn them with haste, if upheld by the Sixth Circuit Court of Appeals,” said Staver. “This is an inappropriate comment for any judicial employee, much less a Supreme Court Justice!”
The call has since been echoed by the Foundation for Moral Law, Faith 2 Action, and the American Family Association, where Bryan Fischer and former Liberty Counsel attorney Steve Crampton recently discussed the need for right-wing activists to "beat on our pots" in order to create so much political pressure on Ginsburg and Justice Elena Kagan that they have no choice but to recuse themselves from any such cases.
In fact, just yesterday, Fischer wrote a column arguing that Ginsburg and Kagan would be "committing a federal crime" if they did not recuse themselves:
The Supreme Court will, perhaps even in this session, take up the issue of sodomy-based marriage. If it does, justices Ruth Bader Ginsburg and Elena Kagan will have an obligation to step off the bench for those cases on the grounds that their impartiality has been severely compromised.
Both have performed sodomy-based “wedding” ceremonies. Kagan performed her first one on September 22 of this year, and Ginsburg has done the deed multiple times, including at least one in the Supreme Court building itself. Thus they have clearly tipped their hand by their actions as well as their words. They have publicly demonstrated that their minds are already made up on the issue. It is inconceivable that either of them now would vote against the “marriages” they themselves have solemnized. They would stand self-condemned.
[T]he necessity for Kagan and Ginsburg to recuse is not just a matter of fairness or rightness. It’s also a matter of law. They have a statutory obligation to recuse. If they refuse to step off the bench when and if marriage cases come before them, they would be breaking federal law. They would be, from a strictly legal standpoint, committing a federal crime. Their sacred responsibility is to uphold the law, not break it.
So it was with great interest that we read this article in The Washington Times yesterday reporting on remarks made by Justice Antonin Scalia at Colorado Christian University in which he stated that the separation of church and state is "utterly absurd" and the idea that the government must remain neutral on the issue of religion is "just a lie":
Supreme Court Justice Antonin Scalia said Wednesday that secularists are wrong when they argue the Constitution requires religious references to be banished from the public square.
Justice Scalia, part of the court’s conservative wing, was preaching to the choir when he told the audience at Colorado Christian University that a battle is underway over whether to allow religion in public life, from referencing God in the Pledge of Allegiance to holding prayers before city hall meetings.
“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion,” Justice Scalia said.
“That’s a possible way to run a political system. The Europeans run it that way,” Justice Scalia said. “And if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.”
“We do him [God] honor in our pledge of allegiance, in all our public ceremonies,” Justice Scalia said. “There’s nothing wrong with that. It is in the best of American traditions, and don’t let anybody tell you otherwise. I think we have to fight that tendency of the secularists to impose it on all of us through the Constitution.”
The biggest danger lies with judges who interpret the Constitution as a malleable document that changes with the times, he said.
“Our [the court‘s] latest take on the subject, which is quite different from previous takes, is that the state must be neutral, not only between religions, but between religion and nonreligion,” Justice Scalia said. “That’s just a lie. Where do you get the notion that this is all unconstitutional? You can only believe that if you believe in a morphing Constitution.”
Given that Scalia was very clearly "making public comment" in a way that directly relates to a whole host of church-state separation questions that could potentially come before the Supreme Court at any time, we trust that these Religious Right groups will now demand that he recuse himself from any such cases as well, right?