Sunday, April 09, 2006

It's okay by Tony

There has been considerable honking and bleating over l’affaire de johnson, the conversations that Dean Johnson had with a member or members of the Minnesota Supreme Court over DOMA, or the Defense of Marriage Act. Captain Fishsticks was his own cottage industry of outrage; Katie of course contributed her own brand of bile in a column that Spot discussed in The feces-flinging monkey. The pièce de résistance, however, was attorney and Republican Greg Wersal’s filing of a complaint against members of the Court.

How ironic, how incongruous, how just plain silly is it that Greg Wersal filed a complaint against judges for discussing issues or positions? Think Katherine Kersten, our dear Katie, writing a book, Opus Dei: a Sinister Cult. Think Osama bin Laden making toasts at a Crusader veterans picnic. Think Johnny Rocketseed . . . well, you get the drift.

You see, Greg Wersal has been a litigating fool on behalf of getting parties and politics into the judiciary for years. Spot wrote a little about it in the link above. And Wersal has actually done pretty well for himself and the Republican Party. In the first case, Republican Party, et al. v. White, (Wersal being one of the et als.), the US Supreme Court reversed an Eighth Circuit holding which upheld Minnesota’s ban on the discussion of substantive legal issues by candidates for judicial posts.

Here’s Justice Scalia writing for the 5-4 majority about the state of the law prior to the decision in Repubs v.White:
The short of the matter is this: In Minnesota, a candidate for judicial office may not say “I think it is constitutional for the legislature to prohibit same-sex marriages.” He may say the very same thing, however, up until the very day before he declares himself a candidate, and may say it repeatedly (until litigation is pending) after he is elected. [italics are Spot’s]

If you think that Tony’s choice of an example is a coincidence, you haven’t been paying attention, boys and girls. It is Scalia’s view that it is perfectly OK for judges to talk about DOMA and their views on it so long as there is no litigation pending before the judge. Well, of course, that’s Scalia’s view; he does it all time, in public.

Now Spot doesn’t think this is such a hot idea, but it comes from the tribe that Wersal is in. And we’ll indulge Wersal in the presumption that he has read and perhaps even understood the opinion in his own case. So let’s apply the rule to the Minnesota Supreme Court. Is there DOMA litigation in front of the Court? Nope. No problem; end of story. Wersal’s complaint is a titanic hypocrisy.

Nor is this the end of Wersal’s mischief. Katie discussed a second Wersalian endeavor in a post discussed by Spotty here. In that case, the Eighth Circuit held that judicial candidates could run with party endorsement and with the assistance of political parties. Representative Steve Simon’s recent effort to at least stem the tide of money into judicial elections went nowhere.

The arc of this story is already described, and you, boys and girls, can see what the likely ending will be.

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