Category Archive 'Supreme Court Appointments'

28 Sep 2020

Then and Now

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24 Sep 2020

Glenn Reynolds Points Out That Supreme Court Seats Were Never Intended to Be So Powerful and So Important and So Worth Fighting Over

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Glenn Reynolds points out very astutely that, if the Supreme Court were genuinely representative of the country, instead of a small, and currently intensely abberant elite cultural clique, and if the Court had properly limited itself to interpreting the Law, rather than following the grand Dred Scott tradition of exploiting an ephemeral Court majority to settle intensely divisive national issues by judicial fiat, we wouldn’t have the vicious political struggle over Supreme Court appointments that has become the norm in recent years.

The power of playing the decisive Platonic Guardian card and getting your way permanently is too valuable a prize.

Why does Justice Ginsburg’s replacement matter so much that even “respectable” media figures are calling for violence in the streets if President Trump tries to replace her? Because the Supreme Court has been narrowly balanced for a while, with first Justice Anthony Kennedy, and later Chief Justice John Roberts serving as a swing vote. Ginsburg’s replacement by a conservative will finally produce a long-heralded shift of the Supreme Court to a genuine conservative majority.

That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting — have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didn’t used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee — because the Court, while important, wasn’t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.

The point isn’t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.

That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.

Almost as bad, the Court is highly unrepresentative. That doesn’t matter when it’s deciding technical legal issues, but once it starts ruling on social issues of sweeping importance to all sorts of Americans, its lack of diversity becomes a problem. And not just the usual racial and gender diversity. Every current member of the Court is a graduate of Harvard or Yale Law Schools. (Justice Ginsburg offered a bit of diversity there, having spent her third year, and gotten her degree from, that scrappy Ivy League upstart, Columbia University. But she spent her first two years at Harvard). All of them were elite lawyers, academics, or appellate judges before arriving on the Court. They are all card-carrying credentialed members of America’s elite political class. Which, as I mentioned earlier, is in general pretty terrible.

Justices used to come from much more diverse backgrounds. Until well into the 20th Century, many Justices — Justice Robert Jackson was the last — didn’t have law degrees, having “read law” after the fashion of Abraham Lincoln, and for that matter pretty much every lawyer and judge until the 20th Century. Many had been farmers, military officers, small (and large) businessmen, even in one case an actuary. But now they are all, in Dahlia Lithwick’s words, “judicial thoroughbreds” with very similar backgrounds, backgrounds that make them very different from most Americans, or even from most lawyers.

So to break it down: All the hysteria about a Ginsburg replacement stems from the fact that our political system is dominated by an allegedly nonpolitical Court that actually decides many political issues. And that Court is small (enough so that a single retirement can throw things into disarray) and unrepresentative of America at large.

RTWT

21 Sep 2020

Tweet of the Day

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12 Sep 2018

Democrats Finally Getting What’s Coming to Them

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Nemesis, statue dedicated by Ptollanubis. Marble, found in Egypt, 2nd century AD. Louvre Ma 4873.

Noemie Emery gleefully observes that the day of reckoning for democrats for what they did to Robert Bork has arrived.

Are you happy now, Teddy Kennedy? Are you happy, Joe Biden? Are you happy now, Harry Reid? It’s due to the things that you did and said that Donald J. Trump is now naming his second Supreme Court justice in under two years in office. It is your fault that the once courtly process of Supreme Court appointments turned into the blood-and-thunder-eye-gouging drama that we hate and we live through today.

It was 31 years ago, in 1987, that Edward M. Kennedy burst on the floor of the Senate to tell us all that with Robert Bork on the Supreme Court, “women would be forced Into back-alley abortions,” blacks would eat at segregated lunch counters, writers and artists could be censored at the whim of the government, and the freedom of millions would hang by a thread.

Before it was over, liberals would raise and spend over $10 million in negative ads (quite a sum at the time) and in lobbying efforts. They would threaten black witnesses with career-ending reprisals and seize and search records of video rentals for signs of blue movies that were never found.

As Steve Hayward says, “The demagogic nature of the public campaign against him made it a watershed moment in American politics, permanently deforming the nomination process as for the judiciary, with ideological battles now extending to the lower federal courts as well.”

RTWT

Tell us, Chuck Schumer, where is that filibuster, now that you need it?

13 Jul 2018

Trump Could End Up Replacing 4 Supreme Court Justices in his First Term

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Business Insider points out that Trump may just be getting started on remodeling the Supreme Court.

Trump now stands to secure two justices in the first half of his first term. Presidents Barack Obama and George W. Bush appointed two justices each during their eight years in office.

Supreme Court justices, who serve for life after a presidential appointment and Senate confirmation, represent one of the longer-lasting marks a president can leave on the country, as the justices often serve for decades.

But Trump reportedly thinks he can get an additional two justices in.

In October, the news website Axios cited an anonymous source detailing private predictions by Trump that Justices Ruth Bader Ginsburg and Sonia Sotomayor would retire during his term.

“What does she weigh? 60 pounds?” Trump asked of the now-85-year-old Ginsburg, a source told Axios. The same report indicated Trump said Sotomayor, over 20 years younger than Ginsburg, was also in trouble because of “her health.”

“No good. Diabetes,” Trump reportedly said.

Sotomayor had a health scare in January with paramedics treating her for low blood sugar, but she quickly returned to work. Sotomayor says she’s vigilant about her Type 1 diabetes, which she’s had since childhood.

During the 2016 campaign, Trump often said he or his Democratic opponent, Hillary Clinton, could end up appointing five justices. …

Ginsburg and Sotomayor are liberal justices, so replacing both Kennedy and either of them with conservatives could change the court’s makeup for decades, possibly reversing decisions like Roe v. Wade.

RTWT

10 Apr 2010

Who Will Replace John Paul Stevens?

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Daniel Foster, at the Corner, supplies a list of the likely Obama choices to succeed Supreme Court Justice John Paul Stevens who has announced his retirement at age 90.

[B]eginning, roughly, with the center-most candidate and moving left, that list likely includes:

Merrick Garland – a former federal prosecutor and current D.C. Circuit appeals judge. A Clinton appointee, Garland is well-liked by Democrats and even some Republicans in the Senate.

Elena Kagan – The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. She is well-respected by just about everybody on both sides, but lacks the paper trail that would reveal just how far to the left she’d sit.

Diane Wood – Another Clinton appointee, considered the heaviest liberal counterweight to the conservative Chicago Seventh Circuit Court of Appeals dominated by Richard A. Posner. Wood was a colleague of President Obama at the University of Chicago Law School.

Pamela Karlan
– A professor at Stanford Law School, Karlan is a longshot once was described by the New York Times as a “snarky. . . Antonin Scalia for the left.” Karlan is openly gay, and an outspoken liberal.

“Would I like to be on the Supreme Court?” Ms. Karlan asked once asked during a Stanford graduation address. “You bet I would. But not enough to have trimmed my sails for half a lifetime.”

A longer list would include some Obama DOJ officials / liberal legal intellectuals like Harold Koh and Cass Sunstein. And the administration reportedly vetted a number of politicians for the Sotomayor spot that could be reconsidered here, including Homeland Security Secretary Janet Napolitano (“the system worked”), Sens. Byron Dorgan (D., N.D.) and Claire McCaskill (D., Mo.), and Michigan Governor Jennifer Granholm (D.)

My two cents: It’s Kagan or somebody nobody is even talking about.

I suspect Obama is going to go farther leftward than most people expect.


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