Cynthia: “I wasn’t 100 percent sober,” Justice Ruth Bader-Ginsburg said with refreshing candor when asked why she dozed off during President Obama’s State of the Union speech. Plus, she added, because her “pen was hot,” she had worked all through the night before the speech and was sleepy.
This is pretty racy stuff coming from an 81 year-old Supreme Court justice. Shades of gray, or is blunt the new black?
Mike: I think she’s onto something; drinking is the best way to make the State of the Union palatable. But blunt is back, whether it is RBG, Paul LePage, or the competing marijuana referendums.
Maine Justice Warren Silver threw some candor out as well in his BDN exit interview. What do you think: should we abolish elected probate judges in Maine?
Cynthia: Wine is bottled poetry, therefore the perfect opening to any great oration.
Ginsburg’s point is that judges are expected be stone-faced and sober at all things political because of a bright line separating the law from campaigns. The election of judges blurs the line, in my view, as would any policy-meddling or politicking by the judiciary.
RBG’s public comments about herself were appropriate in light of the audacious suggestion by some that she retire. It’s not like she picked up the phone and called Mitch McConnell urging him to fund the Department of Homeland Security without undoing presidential executive orders on immigration.
On the other hand, some believe Gov. LePage crossed the line when he injected himself in a pending proceeding at the Maine Human Rights Commission involving Moody’s Diner. Do Republicans think the governor should be routinely calling the Maine Human Rights Commission to intervene in cases?
Mike: It is a noble sentiment that there is a “bright line” between politics and the law, although it is without much foundation. Whether by election or by appointment, the selection of jurists is inherently political. Same with the judicial branch lobbying on active legislation, politicking for e-filing, security, or more support staff.
Courts rightly have the freedom to make their views known. And they have the freedom to make unpopular decisions. But the political branches are empowered to respond as well. See, for example, FDR’s court-packing scheme. All part of those checks and balances.
As for intervention in cases, it happens all the time. A current Democratic district attorney and a former Democratic mayor — now judge — asked the governor to undo an award of a state contract. Right or wrong, Gov. LePage will look into any complaints brought to him and, if he agrees with the concerns, he is empowered to offer solutions, whether it is nominating different people for the job, proposing a law, or signing an order. You know, he too has “a phone and a pen.”
Cynthia: The president used his phone and pen to address the immigration crisis by executive order because Congress is unwilling and unable to do its job. He offered legal reprieve to undocumented parents of U.S. citizens who have lived in the U.S. for at least five years by removing the constant threat of deportation and enabling them to work. Republican governors including LePage sued, challenging the president’s authority, and a federal judge temporarily blocked the Obama administration from carrying out the executive order. The president is complying with the court’s decision. This is how the system of checks and balances is supposed to work.
If President Obama personally called the Texas judge deciding the case and threatened to withhold money from the judiciary’s budget, he would be impeached. Maine’s governor has a flair for the dramatic, but risking prosecution or a civil suit seems like an over-the-top distraction from his tax reform proposal, don’t you think?
Mike: Fault Paul LePage all you want. Would you prefer he openly berate the judicial branch in front of millions of viewers, like the president did to the Supreme Court in 2010? Here, Gov. LePage asked an executive branch commission a question after receiving a complaint of bias. Where was the outrage when Democrats were asking him to intervene in other cases, as I cited earlier? This appears to be politics. Shock!
And I have to stop you — what distraction from tax reform? He pitched his proposal directly to an audience in Westbrook and is going to Bangor to do the same. But since we are talking about the judicial system, do you agree with the Maine State Bar Association that the governor should resurrect the Democrats’ proposal to exempt lawyers from the sales tax expansion?
Cynthia: If anyone can collect sales tax, it’s lawyers, so I’m not sure I agree with the Bar Association. If it makes sense for hair stylists to collect sales tax, it makes sense for lawyers. For Mainers struggling within the legal system and living in poverty, the proposed sales tax credit should help.
Lawyers can also inquire about cases using proper channels for Paul LePage when appropriate. The governor may think he is a jack of all trades, but personally intervening in legal proceedings is skating over the line. Blunt is the new black, after all, not orange.