We already knew the pending Supreme Court showdown between Arizona Gov. Jan Brewer and the Obama administration over the controversial Arizona immigration law SB 1070 would be explosive. But yesterday we got a glimpse of the bubbling animosity between the parties.

As the Court prepares to hear the debate over whether the state statute directing police to check the immigration status of detainees believed to be in the country illegally is preempted by federal immigration law, Brewer and President Obama had a heated exchange yesterday.

After Brewer greeted Obama as he stepped off Air Force One outside of Phoenix, she handed him a letter and then the two engaged in a heated discussion. According to the Associated Press, both Brewer and Obama appeared to be smiling, but speaking over each other for several moments. At one point, Brewer waved her finger in the president’s face.

Asked about the exchange afterward, Brewer said: “He was a little disturbed about my book.”

In her recent book “Scorpions for Breakfast,” Brewer described a meeting she had with Obama at the White House to discuss immigration. “I felt a little bit like I was being lectured to, and I was a little kid in a classroom, if you will, and he was this wise professor and I was this little kid, and this little kid knows what the problem is and I felt minimized to say the least,” Brewer said.

According to Brewer, Obama objected to the book’s implication that she was mistreated at the White House

“I said to him, you know, I have always respected the office of the president and that the book is what the book is,” Brewer said. “I said that I was sorry that he felt that way. Anyway, we’re glad he’s here, and we’ll regroup.”

Brewer said the letter she handed Obama was an invitation to have lunch and visit the border.

Here’s hoping oral arguments at the Supreme Court in April are as exciting.

Sen. Chuck Grassley, angered by an opinion issued by the Justice Department’s Office of Legal Counsel finding President Barack Obama’s recent recess appointments legal, took aim at the opinion’s author, suggesting that she won’t be confirmed by the Senate again.

The opinion, authored by Assistant Attorney General Virginia A. Seitz earlier this month, found that Congress was in recess when Obama made four recess appointments despite Congressional Republicans’ efforts to gavel in pro forma sessions over the holiday break to prevent such appointments.

“I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination,” Grassley said in a Senate floor speech Monday, according to Politico. “However, after reading this misguided and dangerous legal opinion, I’m sorry the Senate confirmed her. It’s likely to be the last confirmation she ever experiences.”

Those comments rankled some OLC attorneys from previous administrations, who said such blackball threats are dangerous.

“OLC lawyers should be free to render their honest opinion and not be threatened with adverse career consequences by either the White House or Congress,” Richard Painter, a White House ethics lawyer during the Bush administration, told Politico.

“The Senator’s name-calling is misplaced,” said Jack Goldsmith, who helmed the OLC during President George W. Bush’s administration.

President Bill Clinton’s chief OLC attorney Walter Dellinger said he was astonished by Grassley’s comments. “I can’t believe that Senator Grassley has actually read Seitz’s thoughtful and carefully reasoned opinion.  And he may not be aware that attorney’s in the administration of President George W. Bush reached the same conclusion that she reached,” Dellinger told Politico.

It did not take long for Congressional Republicans to seize on the controversial recess appointments President Barack Obama made last week.

On Friday GOP members of the Senate judiciary Committee, led by Sen. Chuck Grassley, sent a letter to Attorney General Eric Holder pressing him to disclose just what role the Department of Justice played in advising the president on the recess appointments.

As has been well reported, Obama appointed Richard Cordray as director of the Consumer Financial Protection Bureau, and three members – Sharon Block, Richard Griffin and Terence F. Flynn – to the NLRB. The Senate had previously filibustered Cordray’s nomination and stalled the NLRB nominees, allowing the Board to fall below its statutory quorum the day before Obama made the recess appointments.

Obama made the move despite efforts by lawmakers to prevent Congress from recessing by repeatedly gaveling in pro forma sessions over the holiday break.

The lawmakers’ letter stated that the appointments went against opinions issued by past attorneys general, the U.S. Supreme Court and other authorities that “clearly indicate the view that a congressional recess must be longer than three days – and perhaps at least as long as ten — in order for a recess appointment to be constitutional.  These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.”

Meanwhile, last week Rep. Bill Johnson threatened a lawsuit over the matter.

“Dodd-Frank made it very clear that to set it up it must have Senate approval,” Johnson told Fox Business’ Neil Cavuto (see it here via The Hill). “And the president cannot just arbitrarily change the rules or decide on his own the Senate’s definition of when it’s in session and when it’s not in session.”

Washington is looking a bit like a schoolyard, because there is about to be a big fight over recess.

In this case, it’s a battle over the constitutional definition of recess that is poised to head to the courts. On one side, President Barack Obama, who yesterday made four controversial recess appointments despite some Republican lawmakers’ efforts to stop him by gaveling in and out of pro forma sessions over the holiday break. (It’s a move Democrats used to thwart President George W. Bush a few years back as well).

On the other side, Senate Republicans and business groups who say that Obama lacked the congressional authority to make the appointments.

The agencies in question – the Consumer Financial Protection Agency and the National Labor Relations Board – have been political flashpoints between the White House and Congress since Obama took office. Senate Republicans, angered over the agencies’ power and actions, made no bones about their willingness to block the nomination of anyone to either agency until changes were made.

All these factors make a potential court battle over the president’s recess appointment a juicy and almost certain proposition. But who will win?

That is unclear – as is the Constitution, which doesn’t define recess or specify how long one has to be for the recess appointment power to take effect. The White House said the president acted on the advice of counsel, essentially calling the pro forma sessions shams.

“The President’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” said White House Press Secretary Jay Carney yesterday. “The Constitution guarantees the President the right, provides the President the right to make appointments during Senate recesses, and the President will use that authority to make this appointment.”

Senate Minority Leader Mitch McConnell had a different view. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” McConnell said in a statement. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

The next stop in the fight will undoubtedly be a courtroom.

Addendum: This statement just landed in DC Dicta’s inbox, and reminds us why we’ll miss Rep. Barney Frank, D-Mass: “Republican’s complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building.”

Presidential candidate and former House Speaker Newt Gingrich’s controversial ideas for the federal judiciary – recall that he said he’d ignore adverse Supreme Court decisions and even arrest subpoenaed judges and have them hauled before Congress to explain themselves – have gotten the attention of American Bar Association President William T. Robinson, III. And he clearly isn’t a fan of Gingrich’s plans.

“[H]is headline-grabbing proposals represent more than just campaign rhetoric,” Robinson wrote in an in an op-ed in the Des Moines Register last week, days ahead of the Iowa caucuses . “They seek to undo more than 200 years of constitutional democracy and undermine the one safe haven Americans have to resolve a dispute: our courts.”

Aside from the separation of powers issues Gingrich’s proposal poses, Robinson said Gingrich’s plan threatens to undermine the judiciary at a time when elected officials should be buttressing the government’s third branch.

“The judiciary isn’t a powerful interest group. Courts cannot raise money or marshal voters, unlike Gingrich,” Robinson wrote. “Our courts are easy targets because judges do not respond to these attacks. They are, by design, not supposed to react to the whims and passions of politicians.”

Presidential hopeful and former House Speaker Newt Gingrich said he’d ignore Supreme Court rulings that infringe on his authority as commander-in-chief, and that he’d subpoena judges who disagree with his stance  as president – sending U.S. marshals to arrest and haul the judges before Congress, if necessary.

The GOP candidate said, however, that his preferred method for dealing with “activist judges” would be to impeach them.

“I got into this originally because of two things: the steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president’s commander-in-chief powers, which is enormously dangerous,” Gingrich to host Bob Schieffer Sunday on the CBS News program “Face the Nation,” according to a Reuters report.

When Gingrich raised the prospect of having a judge subpoenaed over a court ruling, Schieffer pointed out some issues that might raise.

“Some people say that’s unconstitutional,” Schieffer said to Gingrich, according to the ABA Journal. “But I’ll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol Police down to arrest him?”

“If you had to,” Ginrich replied.

“You would?” Schieffer pressed.

“Or you instruct the Justice Department to send the U.S. Marshal,” Gingrich said.

Rep. Lamar Smith is amplifying his call to the White House to disclose more information about Supreme Court Justice Elena Kagan’s involvement in crafting the defense of the federal health care overhaul when she was solicitor general now that the Court is set to decide the law’s constitutionality.

“Justice Elena Kagan may have played a role in the development and defense of the president’s health-care law during her tenure as U.S. solicitor general,” the Texas Republican wrote in an op-ed in the Washington Post. “Despite claims from Obama administration officials that Kagan was not involved in the health-care discussions, e-mails released last month indicate that there may be more to the story.”

Smith is one of several Republican lawmakers and conservative interest groups who have raised concerns about Kagan’s participation in the case. The Justice Department released emails from Kagan’s tenure as solicitor general which show, according to the Obama administration, that measures were taken to shield Kagan from involvement in the defense of the law, which was challenged in federal courts as Kagan was rumored to be a candidate to replace Justice John Paul Stevens on the Court.

But Smith said some of the emails are inconsistent  with that position, and the White House should provide more information.

“The NFL wouldn’t allow a team to officiate its own game,” Smith worte. “If, as solicitor general, Kagan did advise administration officials on the constitutionality of the president’s health-care law, she should not officiate when the matter comes before the Supreme Court.”

Smith noted that both Kagan and Justice Clarence Thomas – whose wife is affiliated with groups opposing the law – are facing increasing calls by some interest groups to step aside in the case. But according to Smith, the questions raised about Kagan are much more serious.

“[C]oncerns about the job or personal views of a justice’s spouse are not the same as concerns that a justice may have been involved in a matter before it reached the high court,” Smith wrote.

Members of Congress are amplifying their calls to judicial and Justice Department officials demanding investigations of two Supreme Court justices’ alleged conflicts of interest in the health care reform case pending at the Court.

Since the Court agreed to consider the constitutionality of the federal health care reform law’s individual mandate as well as several other substantive and procedural issues related to the law, calls from members of Congress for Justices Clarence Thomas and Elena Kagan to sit out have grown louder.

Friday New York Democrat Rep. Louise Slaughter sent a letter, signed by 52 House members, to the U.S. Judicial Conference requesting a Justice Department investigation into Thomas’ initial failure to include on financial disclosures his wife’s income from organizations opposing the health care law. It’s the second time the lawmaker has asked the Conference to refer the matter to the U.S. Attorney General.

In January, Thomas amended the disclosure forms, calling the initial omission of his wife, Virginia Thomas’ income from the Heritage Foundation an oversight attributable to a “misunderstanding of the filing instructions.”

Meanwhile Senate Republicans are also pressing Attorney General Eric Holder over the health care case, seeking information on whether Kagan’s work as solicitor general creates a conflict of interest that precludes her involvement in the case.

According to Politico, Sens. Mitch McConnell, R-Ky., Jon Kyl, R-Ariz., Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, sent a letter to Holder saying the Justice Department has handled questions about Kagan in a “highly questionable manner” and demanding clarification on Kagan’s role.

“Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines … confidence [in the administration of justice] further,” the letter stated.

Emails recently released from the Justice Department reveal that, in 2010, then-Solicitor General Kagan called Senate support for the health care bill “simply amazing.”

A 20-year-old public service announcement that hit YouTube yesterday is drawing a lot of attention because of the speaker: then Harvard Law Review editor Barack Obama.

The young Obama narrated a “Black History Minutes” PSA which aired on television back in 1991. In the minute-long video, Obama recognizes the life of lawyer Charles Hamilton Houston who, Obama says, “masterminded the strategy that eventually lead to the historic decision of Brown v. Board of Education, which reversed the Supreme Court’s decision on ‘separate but equal.’”

HT: ABA Journal

Cain photo by Gage Skidmore

GOP presidential candidate Herman Cain, under fire over sexual harassment allegations from his tenure as head of the National Restaurant Association, avoided questions about the topic from some media outlets. But yesterday he agreed to sit down with someone who may be more of a sympathetic audience: Virginia Thomas, wife of Supreme Court Justice Clarence Thomas.

“Are reporters setting you up to be guilty until proven innocent?” asked the justice’s wife of Cain in a videotaped interview posted on the Daily Caller’s website. Virginia Thomas has been a correspondent for the conservative news site founded by Tucker Carlson since the spring of this year.

“That is the DC culture: guilty until proven innocent,” Cain replied.

Virginia Thomas

It was 20 years ago last month that Justice Thomas, during his confirmation hearings, was accused of sexual harassment by Anita Hill. Last year Virginia Thomas made her now infamous phone call to Hill asking for an apology for the accusation. Hill has stood by her assertions. Mrs. Thomas later said the phone call was “probably a mistake on my part.”

During the interview, Mrs. Thomas asked Cain if “campaigning in Washington, DC [was] a disorienting experience?”

“It can be very disorienting,” Cain laughed. “The way questions are asked when I’m speaking to a group here in DC, is coming from a totally different perspective than when I’m being asked questions from the real people.”

He said that disconnect is why he has risen in the polls to be the frontrunner in the GOP race.