As it is said, politics is showbiz for ugly people. The Judiciary, then, is largely a political field for those who don’t like shaking hands. This is no indictment against those on the Supreme Court or a lesser bench somewhere. It is a fact recognized at the Constitution’s writing and ratification. Without checking, I recall in the Federalist Papers on the matter of the Supreme Court, the clear problem of Justices being beholden to the President who nominated them and/or the Senators who confirmed them was to be addressed with lifetime appointment. The theory (which I think was from Madison) was that while a Judge may indeed be in debt to those who put him behind the bar it would be a debt never paid as the Judge is more protective of his own legacy as a fair-minded arbiter, however fictitious that may be, than he is eager to keep political accounts squared since he is now in his final office. As with the rest of the Constitution there is little reliance on having virtuous, capable figures at the highest positions in government, rather there are institutionalized incentives to persuade whatever rat-bastard winds up in there to do the right thing. So while the Court is allegedly above politics we know jurists to be subject to the same disabilities as Presidents and Legislators. They have power. It corrupts. Let’s forgive the President’s recent statements then for they are not as unprecedented as the appalled detractors would have it. FDR spoke against the high court in strident terms. He ran against them, something Obama clearly intends to repeat if he loses. Thank the gentleman for this unambiguous invitation to apply a bit of Crackology in the marbled chambers.

There is no need to strike any illegal blows, rather just to put aside the traditional rhetorical and procedural deference of the co-equal branches to each other. Impeachment. It’s not just for Presidents anymore. Actually it never was. Impeachment is something of a Legislative criminal indictment. In America its only punishment can be removal from public office so it is applied to the odd President. More often, though still not often enough, to judges. It is indisputable that Obama’s statements, especially denouncing the Justices as an unelected body, were meant to communicate to them that their legitimacy would come under political assault from the Executive if they did not return a palatable decision. Fair enough, sir. You have staked your position. The answer must be immediate and unequivocal: impeach Kagan. Impeach Elena Kagan today. She is in blatant and clear violation of judicial ethics, not as understood by today’s Bar but as they have been understood since antiquity. How can any judge preside over a matter one day that she advocated the day before? Kagan was Solicitor General for Obama up until she was proposed as a Justice, some seven weeks after Obamacare’s passage. Can anyone dispute that she has at least the appearance of a conflict of interest? Before you snort that off as superficial, understand that appearance is expressly all that is needed to require her to disqualify herself. But you see another conflict of interest. She is to disqualify herself, an act she seems unable to commit. In the alternate, the parties may move to have her recused but of course only one party would want that, the State Attorneys General, basically the plaintiffs, and it is a notoriously tricky business. Even the presumptive antagonists to Obamacare, the Republican appointees, might take it amiss to have one of their own’s ethics questioned. That is why the House should take it out of their hands and off their minds, introducing Articles of Impeachment for Kagan’s failure to disqualify herself for the appearance of a conflict and pursue evidence of an ACTUAL conflict, subpoenaing all communications from the Solicitor General’s Office on the matter of healthcare and all communications of any sort to or from Kagan with an eye to demonstrate that she was intentionally misleading during her confirmation.

While that may happen in the House, though with Boner in charge it will be tough, the Democrats own the Senate. They will never go through with a trial and conviction that results in removal. Exactly this was said about Bill Clinton, and of course it was true. But that is supposed to be immaterial. It’s not but it is supposed to be, just as judges are supposed to withdraw. Really it is the DUTY of any House member who believes Kagan should be recused to impeach her for her clear violations. In a world where it is universally known that Kagan was nominated solely to be a certain upholding vote for Obamacare why has this not already happened? We know. Kagan enjoys the protective field of an Affirmative Action hire. As a woman, any opposition to her will be a sexist assault, especially as the day’s War on Women continues. Only cowardice prevents her impeachment in the House but cowards may still commit brave acts when fired upon. The House is under constant withering fire from the Executive. Now with his open political attacks on the Supreme Court they should feel the urge and opportunity to fire back. Impeach Kagan immediately. It is not a close question.

Nor should there be any hesitation or question that Ginsberg should also be impeached without delay. Yes, she also is an Affirmative Action hire though she was more put in place for her pedestrian socialist views than anything else. The Housemen dare not let her skirts protect her. Hey, they ALL wear robes anyhow and that is one of the reasons. Justice for jurists is supposed to be as blind as the justice they dispense. Any figure who has gone to a foreign country for the express purposes of denouncing and delegitimizing our Constitution is wholly unfit for any government office except maybe public defender, though the vapidity of her views makes her competency suspect even there.  She took an oath to defend the Constitution. Admitting that she did so under false pretenses seems to easily breach the “Good Behavior” on which her continued tenure expressly lies. Again this is not a close question. Failing to impeach Ginsberg is a dereliction.

Waiting for the House Republicans to evolve into vertebrates may be impractical but the Judicial can and DID strike back, quite appropriately, on its own. In the Fifth Circuit there was another Obamacare related suit in progress. The three judge panel (Republican appointees, since you ask) have demanded the DOJ attorneys before them explain whether or not the Executive, as a matter of policy, endorses the legitimacy of the federal courts. Given the President’s statement, this again was an action compelled by the law and simple sense. If the senior partner in a law firm or a CEO of a company appearing before the court had denounced its legitimacy and independence they would be subject to contempt. Adverse default judgments could well be entered on the grounds that the suits or their defense were not in good faith. Pfft. Gone. And take this disbarment with you. Instead the court had the Attorney General explain himself. Every DOJ attorney with an active case before a federal court should have been required to do the same. But Crackology rules WITHIN coalitions of all sorts. Jeffrey Toobin, Obamacare’s free-range mouthpiece, had to publicly get his mind right after righteously declaring the oral arguments “a trainwreck”. He denounces this rather mild and absolutely required bit of pushback as an outbreak of lunacy, his timely and intemperate slander clearly compensating for his previous candor which could only be a symptom of shock. But the homework assignment was turned in, on time if lacking in substance. While eliding it as much as possible, the response could not do other than contradict the clear statements of the President, cracking the connections between Obama, Holder, the law and the courts.

Each of these actions or, more accurately, reactions, effectively plump the court’s view of itself as a legitimate and co-equal branch of government against Obama’s threat against same. The anonymous advocate for lifetime judgeships thought this would be the very thing, other than decency and intellect, that would protect the court from the usurpation of its role now attempted by the Administration. Before we throw up our hands or take up our arms we should see if the old schemers are proven right yet again. Impeach Kagan or just make the public attempt. If she holds her credibility dear she will at least recuse herself as she should have done in the first place. Could it be that her illegal leak of the proceedings to the President is already a regret for her? If not, it must be made so and this also would be a fine foundation for impeachment by itself. Ginsberg’s treachery will at the least be widely exposed. How many folks on the street know what she has done and said? Even without the real prospect of removal a more even-handed approach should be the result and if it is not, at least she will be exposed. The composition of the Fifth Circuit panel aside, is it not possible that even Democratic appointees felt a chill from the President’s lips? They too, after all, are unelected and as the dedicated “Progressives” we know them to be, they are also aware that huge swaths of their accomplishments and even more of their projects rely on explicit judicial activism of the sort Obama has just mendaciously and hypocritically rubbished. They also have their dignity, judicial and otherwise. Since they can’t be fired could they push back in their own way? It would be unwise for the firm of Obama and Holder to inflame the judiciary at large against them, thinking otherwise.

So the crude round of hew-and-patch comes openly to the law courts. It is Obama who has brought Crackology there. So be it. Nasty outbreaks of derision inform us the time is ripe. As always we will divide and unite opportunistically. We will blast and drill as we soothe and smooth, deducting from Team Obama while adding to our own coalition, at the top as much as at the roots. While the President affronted all judges, I consider Sotomayor with especial interest. Demonstrating herself to be ignorant of the law and reason on the other side during Orals, she may be dim enough not to know why she was put on the Court in the first place; just like Kagan, as a gimme for Democrat-friendly decisions. And if she does realize that could she revolt for the sake of her now precious credibility? It depends on how seriously she takes her oath, her self and her job. She sits in an office designed to encourage independent thinking even in those unused to it, the one thing Utopia cannot survive.

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