Tag Archives: SCOTUS

Waiting for return of confirmation comity

There once was a time when U.S. Supreme Court nominees sailed blissfully through the confirmation process, with senators giving presidents all the latitude in the world to select the person of their choice. They asked some tough questions, occasionally, but were respectful and a bit deferential to presidential prerogative.

Not … any … longer.

President Biden is going to select a black woman to succeed Stephen Breyer on the court once Breyer retires at the end of the current court term. The president can expect a donnybrook. He might be able to find the most brilliant legal mind this side of the Magna Carta, but that person won’t be confirmed without shedding a good bit of blood as she takes incoming rounds from the Republican obstruction brigade in the Senate.

When did it come to this? I guess you could trace it to 1987, when President Reagan nominated Robert Bork to the SCOTUS. Bork was known to be a strict constitutional constructionist. He was a brilliant legal scholar, but he had some seriously offensive views about the role of women and racial minorities. His nomination went down in flames.

Then came the 1991 nomination of Clarence Thomas, whom President George H.W. Bush called the most brilliant legal mind in America. He sought to succeed the late Thurgood Marshall. Then came allegations of sexual harassment and the testimony of Anita Hill. The debate was ferocious. The Senate confirmed Thomas, but it was a narrow mostly partisan vote.

I am thinking at this moment of a nominee put forth by President Eisenhower in 1953. Earl Warren was governor of California when Ike asked him to join the court. He had never served as a judge. I wonder now how an Earl Warren nomination would fare in today’s climate. Would senators question his qualifications? Would they hold him to the same sort of careful examination that they appear ready to do to whomever Joe Biden presents? If the answer is yes, would Gov. Warren hold up?

For the record, I am glad Earl Warren served as chief justice, given that the court on his watch approved some amazing landmark rulings; e.g., Brown v. Board of Education.

I want President Biden’s first high court nominee to be judged carefully but fairly by senators. I am concerned they will respond with red herrings, specious arguments and phony concerns.

I remain committed, by the way, to presidential prerogative in these cases. Elections, as they say, do have consequences. I have been faithful to that truism with respect to whomever is in office.

So, let the process move forward. I hope for a semblance of judicial comity as the Senate ponders this most important selection.


Hey, Gipper said so first!

President Biden pledged once again today to make an unprecedented appointment to the U.S. Supreme Court. He will find an African American woman to nominate to the court to succeed Justice Stephen Breyer.

OK. That’s unprecedented. I get it. However, he ain’t the first president or candidate for POTUS to make a pledge to find someone of a particular gender to the court.

Ronald Reagan did so while running for the presidency in 1980. He said a few weeks before that election he would nominate the first woman to the court. He won big that year. And in 1981 President Reagan made good on the promise by nominating Sandra Day O’Connor to the Supreme Court.

We’re good so far, right?

Conservatives then hailed the choice.

Their reaction to President Biden’s pledge? Why, he’s slamming the door shut on qualified judges; they say he is launching an affirmative action program to the court selection process; we can’t allow the president to pick someone who might not pass judicial muster, as if the person’s racial background by itself is an impediment.

The duplicity is stunning.

I am going to hold onto every confidence on God’s good Earth that President Biden is going to find a top-drawer, first-rate, learned jurist … who just happens to be an African American woman to serve on the nation’s highest court.


Awaiting SCOTUS debate

I am waiting with bated breath — yes, already! — for Senate Republicans to voice their opposition to whomever President Biden chooses to succeed Justice Stephen Breyer on the U.S. Supreme Court.

You see, we now will get to hear the objections as to why they oppose what the president promises will be a legal scholar of impeccable credentials; she will be someone with outstanding character; she will have unassailable legal credentials.

That won’t be enough to swing GOP senators over the right side of history as Joe Biden proceeds to find the first African American woman nominated for a spot on the nation’s highest court. Oh, no!

They will concoct reasons to oppose her. They will take whatever she might have said about something out of context, twist it into something no one can recognize and then declare that there is “no way” they can support such a “radical, left-leaning” lawyer to the Supreme Court.

I actually welcome that debate. Why? Because I want to know who the individuals are who cannot set their political bias aside while considering such an important choice for a lifetime appointment.

Oh, and be sure to stay alert to the accusation that Democrats in Congress and the president are somehow playing “politics” with this choice. Wait for it. That ridiculous canard is bound to surface.


Breyer to retire … who will join SCOTUS?

Stephen Breyer today made official what the world has known for, oh, the past 24 hours, that he is retiring from the U.S. Supreme Court at the end of the court’s term.

Now comes yet another stern test for President Biden: finding a nominee who will be seated quickly on the nation’s highest court.

The president has limited his field of choices dramatically by pledging to name an African American woman to succeed Justice Breyer. Allow me this bit of wisdom per the next nominee to join the court.

Of the names I have heard mentioned I am struck by the term “public defender” in the backgrounds of at least two prominent judges. The idea that a legal genius who has served as a public defender could join the nation’s highest appellate court is appealing in the extreme to me. One name appears to be the prohibitive favorite, as an article By Elaine Godfrey in The Atlantic has noted:

We know that his nominee will almost certainly be a woman. In 2020, then-candidate Biden vowed that he would respond to a Supreme Court opening by nominating a Black woman. Dozens of candidates are being talked about, but nearly all of the Court watchers I interviewed for this story have their money on one in particular: Ketanji Brown Jackson.

Biden’s Likeliest Replacement for Justice Breyer: Ketanji Brown Jackson – The Atlantic

I believe someone with public defender experience in her legal background brings a totally new perspective to any judicial conference that would occur when the court is considering, for example, an appeal on a death penalty case; or perhaps an appeal on a conviction that someone believes was incorrectly achieved.

Could a Supreme Court associate justice soften the hard hearts of her colleagues? It’s possible. Then again, it might not. My point though is that a U.S. Supreme Court need not be populated only with jurists who come from, say, civil law or who have experience only as criminal prosecutors.

President Biden seemingly wants to broaden the scope of the Supreme Court’s world view. Go for it, Mr. President.


Speed is critical, Senate Democrats

I will be watching with keen interest to see whether U.S. Senate Democrats can move with the speed and precision that their Republican colleagues can when they are given the chance to push a Supreme Court nominee through the body and onto the court.

Justice Stephen Breyer is retiring at the end of the current SCOTUS term. President Biden has promised to name a nominee soon to replace Breyer. He said during the 2020 presidential campaign he would name an African American woman. Remember that he made the same pledge when looking for a vice-presidential nominee. So, he’s a man of his word.

Democrats still control the Senate. But not by much. The body is split 50 to 50. Vice President Kamala Harris would be the tie-breaking vote if she needs to do so. Gawd, I hope it doesn’t come to that when the Senate votes on a Supreme Court nominee.

When Justice Ruth Bader Ginsburg died in 2020, Republicans moved heaven and Earth to get Amy Coney Barrett confirmed just weeks before that year’s election. But … when Justice Antonin Scalia died in February 2016, nearly a year before a presidential election, Senate GOP leader Mitch McConnell dug in his heels and denied President Obama the opportunity to nominate a successor to the iconic conservative justice.

We have a midterm election coming up and Republicans could seize control of the Senate when they count the ballots.

So, the speed of this nomination process is critical.

No lollygagging allowed, Mr. President.


Why fight this pick?

My idea of political perfection might lie in the way the president of the U.S. and the U.S. Senate conduct themselves as we seek to find a justice to the nation’s highest court.

Justice Stephen Breyer has announced his intention to retire from the Supreme Court at the end of the current court term. President Biden then will get to select a nominee to succeed Breyer.

Biden’s pick won’t swing the ideological balance of the court; it will remain a 6-3 conservative panel.

That all said, it makes sense — to me, at least — that all Biden has to do is find a qualified jurist to take the seat once the Senate confirms her. Oh, yeah; I need to mention that the president has pledged to select an African American woman to succeed Breyer.

It should be a slam dunk, right? A 100-0 vote to confirm, presuming the justice-designate is qualified and has earned the necessary chops to take a seat on the highest court in America.

It ain’t likely to work that way. We hear now from Sen. Lindsey Graham, the Republican from South Carolina who doubles as Donald Trump’s suck-up boy in the Senate, saying Biden can get a nominee approved “without Republican support.” Does that mean the GOP caucus is going sit on its hands while fabricating reasons to oppose whomever Biden selects? Sounds like it to me.



A new fight in store for SCOTUS seat?

Here we go again, maybe, perhaps … but I surely hope not.

U.S. Supreme Court Justice Stephen Breyer announced today his intention to retire from the court at the end of the court’s term. He is paving the way for President Biden to nominate a successor.

Is this a big deal? You bet it is! Presidents have a chance to make a lasting impact on our judicial system that will remain far longer than their terms in office. However, let’s consider some key elements.

Breyer is one of three “liberal” justices serving on the court. A Biden appointment isn’t going to change the nine-member court’s ideological balance. Donald Trump nominated three justices during his term on the court, the last one of whom delivered the strong conservative majority that now sits on the nation’s highest court.

Progressives have been hollering for Breyer to step down for a long time. They want a woman to join the court, along with Justices Elena Kagan, Sonia Sotomayor and Amy Coney Barrett. President Biden already has pledged to nominate a woman, and she likely will be a Black woman. As NBC News reports: Biden has pledged to make just such an appointment. Among likely contenders are federal Judge Ketanji Brown Jackson, former Breyer law clerk, and Leondra Kruger, a justice on California’s Supreme Court.

Is all of this a done deal? Well, consider that recent judicial appointments have been subjected to harsh partisan disagreements between Republicans and Democrats in the Senate, which has confirmation authority.

President Biden is going to move rapidly to nominate someone. Indeed, time is not his friend. The midterm election is coming up this fall, the court’s new term begins in early October and the president will need to get someone seated with whom he feels comfortable.

It’ll be a fight but let us hope is not the kind of bloodbath to which we have grown accustomed.


Impeach the justice!

Here’s a thought for you to ponder. It doesn’t come from me exclusively, but I read about it and have embraced it as a potential game-changer for the American judicial system.

U.S. Supreme Court Justice Clarence Thomas could be impeached by Congress because of his wife’s right-wing activism and the justice’s refusal to recuse himself from cases in which she is involved directly.

Ginni Thomas is a right-wing zealot. She has written scathing essays excoriating the 1/6 House committee examining the insurrection that sought to block the certification of the 2020 presidential election.

She and her hubby talk openly with each other about their jobs and their duties. So, how in the world does Justice Thomas vote on matters involving Ginni Thomas’s political activism?

Case in point: The court voted recently 8-1 to require Donald Trump to turn over documents to the House select committee looking into Trump’s role in inciting the riot. The lone dissent? It came from Clarence Thomas.

Good grief, man. Justice Thomas has no business sitting in on arguments involving anything regarding this issue. His wife has disqualified him in the eyes of many millions of Americans, including mine.


Michael Tomasky, editor of The New Republic, makes the case that Clarence Thomas is ripe for an impeachment action. What’s more, there needs to be ethical rules set up to govern the Supreme Court, the only court in America that doesn’t have any such regulatory authority watching over its conduct.

I happen to agree with him, that Clarence Thomas has disgraced himself and the nation’s highest court.


Conflict of interest … anyone?

What am I missing here? Supreme Court Justice Clarence Thomas was the lone dissenting vote on the high court that decided the National Archives must release hundreds of pages from Donald Trump’s files to the House select committee investigating the 1/6 insurrection.

Hmm. I thought about that dissent. I wasn’t surprised, given Justice Thomas’s rigid right-wing credentials.

Oh, but wait! Then came this bit of news. Ginni Thomas, the wife of the justice, is an ardent political activist who rails constantly against the 2020 presidential election. She is known to be a fervent supporter of the disgraced, twice-impeached former president. She just recently launched into a scathing attack on the 1/6 committee, challenging its legitimacy and its authority to look where it is looking.

So, then comes the decision from the highest court in the land. All the other justices, conservatives and liberals — including the three people nominated by Donald Trump — voted to require the documents to end up in the committee’s files.

Justice Thomas was the lone dissent. Is there a conflict of interest that the justice is ignoring?


SCOTUS deals blow to ex-POTUS

Part of me wishes I could have been in whatever room Donald Trump was in when he got word that the Supreme Court had delivered a potentially fatal blow to his cover-up efforts relating to the 1/6 insurrection.

More to the point, that same part of me wishes I could have heard his response when he learned that all three justices he nominated for the court voted with the majority in squashing the effort.

You see, Donald Trump expects the judges he nominates to be loyal to him, not to the law or to the Constitution.

The court ruled 8 to 1 to require the National Archives to turn over records to the House committee examining the insurrection. The only dissent came from Justice Clarence Thomas. As for Trump’s nominees — Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — well, they stuck with the law.

That’s how it should be.

According to NPR.org: The court’s order paves the way for the release of records from the National Archives. The records could shed light on the events that led to the riot by Trump supporters protesting the results of the 2020 presidential election, which was won by Democrat Joe Biden.

The high court said lower courts had determined that Trump could not claim “executive privilege” in hiding those records.

“Because the Court of Appeals concluded that President Trump’s claims would have failed even if he were the incumbent, his status as a former President necessarily made no difference to the court’s decision,” the court said in its order.

Lifetime appointments to federal courts do have this way of freeing judges from a good bit of political pressure. That, too, is in keeping with what the founders had in mind when they wrote the Constitution. They were wise men.