Starr drops hints on Prop 8 argument, forecasts filibuster for Supreme Court nominees

by on February 17, 2009  •  In Judiciary, Marriage

At the annual conference of the J Reuben Clark Society, an association of Mormon attorneys, Pepperdine Law Dean and former inquisitor Kenneth Starr dropped a few hints about his upcoming oral argument in defense of Prop 8, and also forecast rough sailing for any Obama nominees to the Supreme Court. According to the Mormon Times,

Starr told the audience he would not speak in depth publicly about his scheduled March 5 appearance before the California Supreme Court, where he will argue in favor of upholding a ban on same-sex marriage approved by voters under Proposition 8.

"I'm not going to be talking about that," he said. "One of my precepts is never argue outside the courtroom, on the courthouse steps, so to speak, your case. At the same time, I recognize how important the issue is, so a compromise that occurred to me is simply to share with you several sentences, briefly, from two sources of law."

Starr then read from prior opinions of the California Supreme Court on the limits of public officials' ability to execute their public duties as well as a passage from the California state constitution stating that only marriage between a man and a woman is legally valid.

That was pretty opaque, but Starr apparently spared few words on the prospect of Republican payback over confirmations:

Starr said Obama may have occasion to appoint two or more justices to the high court, and because he actively opposed nominees from former President George W. Bush while Obama was the junior senator from Illinois, Senate Republicans just might return the favor. Starr reminded attendees of the J. Reuben Clark Law Society conference that Obama supported a filibuster against Justice Samuel Alito and voted against John Roberts, now Supreme Court chief justice.

"It is the era of President Obama; it is also the era of the Roberts court, two very able lawyers," said Starr. However, Starr pointed out, "the salience of this very enviable position, politically, for our president is brought home by the president's own approach to the high court during his years of service as a United States senator." He continued, "There is one historical factoid of note: He is the first president of the United States ever in our history to have participated in a Senate filibuster of a judicial nominee. Never before has that happened."

Starr cited a November article in The Washington Times about the problems Obama faces, quoting, "Senate Republicans say the president-elect's voting record and long simmering resentments over Democrats' treatment of President Bush's nominees will leave Mr. Obama hard-pressed to call for bipartisan help confirming judges or even an up-or-down vote."

Of course, if the good folks of Minnesota ever stop counting and recounting and recounting their votes from November (can we airlift in some calculators?) and finally send Al Franken to the Senate, the Dems will be only one short of a party-line vote getting to 60. So at least for the next two years, my hunch is that Obama judicial nominees will be pretty safe, assuming that they don't have any employees or tax liens that have slipped their minds.


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