January 04, 2011

2011 Predictions for Law & Politics

2011 marks the tenth year of the Committee for Justice’s commitment to defending the Constitution by advocating for the rule of law and promoting constitutionalist nominees to the federal judiciary and Department of Justice. Each year, at about this time, we quietly speculate about what legal and political developments during the next twelve months will shape CFJ’s agenda within this overall mission. This year, we decided to share our thoughts by releasing the following list of our eleven predictions for 2011. Our predictions should not be confused with what we would like to see happen this year.

Predictions for 2011:

1) Justice Ginsburg will experience health problems, reigniting speculation that President Obama will have the opportunity to name her replacement during his first term. Progressives will quietly hope that Ginsburg resigns in 2011, before election year politics makes confirmation of a decidedly liberal replacement impossible. Nonetheless, progressives will be disappointed because Obama will fill any 2011 (or 2012) Supreme Court vacancy with the relatively moderate DC Circuit Judge Merrick Garland.

2) President Obama will refrain from scolding the Roberts Court in his 2011 State of the Union speech, despite the brownie points he earned among the Democratic base for denouncing the Court’s Citizens United decision during his 2010 State of the Union. Due to last year’s scolding, attendance by Supreme Court Justices at this year’s State of the Union will be down.

3) Stinging from criticism that they did not make judicial nominations a priority in 2009-10 and aware that a Republican president may be filling judicial vacancies in 2013, President Obama and Senate Majority Leader Harry Reid will put nominations on the front burner. Obama will be faster to nominate judges and Reid will do what’s necessary to schedule confirmation votes in the absence of unanimous consent.

4) A showdown between President Obama and House Republicans over withholding funds for implementation of ObamaCare will be averted when Obama reluctantly agrees to support medical malpractice reform.

5) A new House rule that requires every bill to cite the constitutional authority for proposed legislation will help to educate both Congressmen and the public about the limited nature of Congress’s powers. But behavior is hard to change, so we’ll see only incremental progress in changing the reality that Congress never met a bill it liked but rejected as outside its authority.

6) Despite the fears of conservatives that the Obama Administration will go soft on Julian Assange, the Justice Department will indict Assange for violations of the Espionage Act, as well as for receipt of stolen government property.

7) GOP control of the House makes a thorough Congressional investigation of the Justice Department’s handling of the Black Panthers case inevitable. However, interest in the merits of that particular case will wane as evidence uncovered by the investigation shifts the focus to the broader problem – first alleged in 2010 by current and former DOJ attorneys – of Obama appointees at DOJ instructing Voting Section staff not to bring cases with white victims and black defendants.

8) By the end of 2011, the Supreme Court will agree to hear the California gay marriage case, the lawsuits against Arizona’s crackdown on illegal immigrants, and perhaps the challenges to ObamaCare, ensuring that the Court’s 2011-12 term will be one of the most memorable in history.

9) In three of the most closely watched cases argued before the Supreme Court this past fall, the Justices will a) strike down a California statute forbidding the sale of violent video games to children in a decision that unites Justice Scalia and the Court’s liberals; b) uphold an Arizona law revoking the business licenses of companies that hire undocumented workers; and c) uphold another Arizona law giving parents tax credits for tuition at private schools, including religious schools.

10) While the Constitution’s Commerce Clause and the Tenth Amendment will continue to be hot issues in various legal challenges to Obama Administration legislation, less sexy but equally important regulatory challenges will multiply as Obama attempts to bypass the GOP-controlled house by enacting his agenda through broad, aggressive regulations issued by Health & Human Services, the EPA, the FCC and the new Consumer Financial Protection Bureau, among other agencies.

11) Allegations of GOP obstruction of noncontroversial judicial nominees will fade as an issue in 2011 in light of both the easing of the judicial confirmation backlog – after a bevy of lame duck confirmations last month –and more generally, the fact that Senate Republicans never planned to indefinitely delay the confirmation of noncontroversial nominees. However, the five most controversial judicial nominees – Goodwin Liu, Robert Chatigny, John McConnell, Edward Chen and Louis Butler – will not be confirmed in 2011 (or 2012) if they are even renominated by the President.