As we noted two days ago in an entry here, Justice Ruth Bader Ginsburg passed away this week.
Ginsburg was a giant on the Court and few are going to criticize her right now, but if you were to levy a criticism, it would be that her prognostical abilities were no greater than that of most pundits in 2016. Almost everyone presumed that Hillary Clinton was to be elected President, not Donald Trump.
It's well known now that Ginsburg was ill then, and in the category of a person who was repeatedly cheating death. Death, the way we humans seem to perceive it, can be cheated for awhile, but in the end, Death tires of the game and comes to collect everyone, Supreme Court justices included. Ginsburg was gambling with her desires as its clear that she wanted to have a Democratic President name her replacement. It's not impossible, we should note, that she still will.
What is clear is that if she had stepped down in 2015, or so, as Democrats were begging her to do, President Obama would have named her replacement. With a narrowly divided Senate, President Obama had a track record of naming center left, but not extreme left, replacements. That may be why Ginsburg hoped to wait. Had Hillary Clinton been nominated the nominees would have been more left leaning, probably. Ginsburg probably hoped for a female replacement in her old mold or at least a replacement of the same intellectual tenure and intellect as herself. It can't be said that the last female appointment to the Supreme Court met that criteria. Her desire to wait, therefore, can be appreciated. Like most watching the race, however, she guessed wrong.
That put her in the position of trying to outlive the Trump Presidency and she failed. And so now we're off to a nomination of a replacement. This thread will take a look at that process.
September 20, 2020
Will there be hearings?
Mitch McConnell. As head of the Senate, McConnell has been despised by Democrats but has otherwise been extraordinarily effective. At least from the outside, he's somewhat hard to like, but then the Democratic opposite, Chuck Schumer, is as well.
The first thing we'll note here is that its not certain that there will be hearings on a nominee. It's certain that there will be a nominee (we'll look at that in a moment).
The Senate is very narrowly divided. In order for there to be hearings, and a vote, Mitch McConnell has to have the entire GOP in line in that body. But right now, he doesn't seem to.
There's a lot of concern in the Senate that the Democrats will take it in the Fall. McConnell himself is in real trouble. That gives McConnell a real reason to push this quickly. McConnell takes the view that the Courts are the most important branch of government, and given the failure of the legislative branch over the past few decades to get its act together, his view has merit. McConnell is likely accepting that Trump is going to lose in the Fall and that the next Senate will be Democratic.
That also, however, paradoxically gives some GOP Senators a reason to do nothing, at least until November, and maybe beyond. Indeed, one such Senator who is in trouble this election cycle, Lisa Murkowski, has said she won't agree to hold hearings until after the election, which is likely because she doesn't want to wreck her own election changes.
Alaska's Lisa Murkowski, a Republican Senator who has already pledged to hold off on a Supreme Court nominee.
So, in spite of the Press treating a nomination and confirmation as inevitable, the second part of this isn't. Indeed, frankly right now I'd give it only a 50/50 chance.
Added to that, however, is what about the departing Senate? Even if the results of the November election flip the Senate to the Democrats, that only takes place in January. There's a really good incentive then for all the Republicans to come together and confirm a conservative Justice. Would Senators like Murkowski do that if the lose in November?
That's hard to say and it'd be a matter of conforming themselves to their declared positions. But if I were in their shoes, I would. And that's because McConnell, if not fully right, is close to right on the importance of the Supreme Court. With the Court divided often on a 5 to 4 basis, the next President may well also appoint at least one more justice. If that's a Democrat, and Ginsburg isn't replaced by January, then that would mean the next Democratic President would flip the Court to the center left. If its Donald Trump, he'll cement the body into the center right for the next couple of decades.
Court Packing
All of which assumes that the Democrats, if that happens, don't come and simply make the Court an eleven justice body, which they could do.
They shouldn't for a variety of reason, the primary one being that that'd make them complicit in the very thing they claim the election is about, avoiding destroying democracy. It'd reduce respect to the Supreme Court to nill.
They also shouldn't do it for another reason, which is just below.
What is all the hoopla about?
Just one thing really, states voting on stuff.
At its core, what all the leftward concern about is individual state legislatures voting on social issues, with one single exception.
Generally, the liberal fear is that the Court will go further in the direction it is already going, and find that a lot of things aren't protected by the Constitution, and therefore state legislators can vote on a state by state basis on them. Things like abortion, LGBQT rights, etc, they fear, would be taken up on a state by state basis, rather than simply be dictated by a Supreme Court that has been left of center on those issues over the year.
And they're right.
So what it comes down to, basically, is democracy.
The American judiciary really doesn't have any philosophical conservatives on the Supreme Court. Rather, it has a body of philosophical liberals and judicial conservatives. This is rarely appreciated, but the fact of the matter is that the conservative justices pose no real danger of voting their philosophical beliefs, while the opposite is true in regard to the liberal justices. For example, there's no risk that conservative justices are going to hold that life is protected for existential reasons found in natural law, and therefore abortion is illegal due to a law higher than and outside of whatever the United States Constitution may afford. Rather, there's a real chance that the conservative justices, using this example, might find that there's nothing in the Constitution about "penumbras" and the like, and therefore it isn't protected in any sense in the Constitution and the states have to handle it.
As The New Republic, back in the days when it was still worth reading and not full gonzo nutso, once noted, liberals could argue the same position as that position is an expansion of democracy and liberals otherwise claim to be for that. They don't take that position, however, as the evidence suggests that a majority of states would act to limit the rights, if they are that, that the Supreme Court has created on its own. In other words, their position is inherently anti-democratic.
Indeed, the real irony of this is that the liberal position in recent years actually makes a great deal more sense of conservatives. Conservatives have always held somewhat of a disdain for the democratic process as they feel that if it's taken too far, it amounts to rule by mob. So the traditional conservative view of the Constitution is that it says what it says and protects what it protects to protect the minority against the whim of the day. An important aspect of that is, however in order to conserve things, you have not to create them, which is where conservatives have real heartburn in this area. No matter what view you may take, it's quite clear that the Supreme Court has invented rights that aren't really in the text.
This also points out why gun control tends to be an exception in this argument, or maybe not The Constitution says what it says, which causes liberals heartburn as they want the Court say it doesn't, so it can be legislated. The problem with that is that it's the intellectual opposite of their other views. A person can't say that the Supreme Court is holding up the will of the people by reading the document literally while also saying that the Supreme Court should hold up the will of the people by not reading the document so literally. The conservative reply tend to be the same both ways. . . it says what it says.
So what is basically at state is whether the Constitution is to be read literally or not, and if not, are we comfortable with justices who will, to at least some degree, frame and interpret what are and are not rights based upon their philosophical views. As noted, in modern times, that has meant liberal philosophical views. There are indeed conservative philosophical views that apply to the law, but almost no judges in the US system have attempted to apply them for decades.
Not enough time and just before an election.
As the Democrats are pointing out, the last time that this came up was just before President Obama was to leave office, during which the McConnell simply didn't take up Obama's nominee, Merrick Garland.
A good case can be made that the Senate shirked its Constitutionally imposed duties by not taking up the nomination. Typically, however, those arguing that proved gutless. A remedy existed in the form of filing a suit seeking a Petition for a Writ of Mandamus on that issue. Maybe it would have worked, maybe not, but they just sat on their butts and didn't do anything.
Pretty typical.
I'm not really convinced by any of the other arguments on this topic one way or another. Not taking up the Garland nomination was a matter of politics, nothing more, nothing less, and the Senate is a political body. Prior examples, in that context, are pretty meaningless. And there's plenty of time to take the matter up. Justice Ginsburg, for example, went from nomination to confirmation in nineteen days.
So all the arguments not to take this up that are based on "not enough time" and "too close to the election" are merely political. . . they way they are framed.
However, an argument can be made, and some will likely make it, that in our current era, the most devisie one politically since the Civil War, maybe its just a good idea, on the grounds of national unity, to wait.
The first name mentioned, Amy Coney Barrett
It looks like, at least this morning, the nominee might be Amy Coney Barrett.
Justice Barrett is an appeals judge for the Federal Seventh Judicial District. Her name has been mentioned before and by all counts she is well qualified. She is a 1997 graduate of Notre Dame's law school which would refreshingly put her outside of the cabal of Ivy League law school graduates, something that's much needed in the Supreme Court. Her career, like most current Supreme Court justices, has been mostly academic. She's been on the bench since 2017.
She's feared by the political left as she's Catholic, and there's an almost open rule now that Catholic nominees are a pariah. The fear is that they take their theological views seriously. Barrett was openly questioned during her nomination about her being a Catholic, including by Senator Dick Durbin who didn't like the fact that she's described herself as an "orthodox Catholic". Durbin himself is a Catholic, but one was barred from receiving Communion in the Diocese of Springfield for his support of abortion. His statements in Barrett's hearings lead to his alma mater, Georgetown, condemning him. More notably, Dianne Feinstein, during Barrett's hearings, made the completely bigoted comment that "the dogma lives loudly with in you, and that’s a concern" about Barrett, which if made about a nominee of Feinstein's professed faith, Judaism, would have been regarded as a permanent disqualification for holding office. Feinstein was criticized, but she still holds on to her seat, so she wasn't damaged by her religious bigotry.
She is a conservative jurist.
All of which means that the upcoming hearings, if there are any, and even if there aren't, are going to amount to a wild ride. Barrett, if nominated, is clearly qualified. Opposition to her will be massive on the political left, if for no other reason (and there will be reasons), of when she was nominated.
Stay tuned for an interesting series of updates on this one.
September 21, 2020
Not really a new addition here, but new to me as I didn't know at the time I posted this yesterday, Senator Susan Collins also will not vote to go forward with the confirmation process.
Senator Susan Collins of Maine.
Collins is very much in the political center and holds views that depart from even the establishment Republican mainstream. She's also in election trouble right now so her position isn't surprising.
It'd take two more GOP Senators to break ranks and decide not to press forward with a nomination in order for that to occur.
September 21, 2020, part two
A nomination for Ginsburg's replacement is now expected no later than Wednesday.
This topic is, of course, the focus of all the news shows. I've only heard Meet The Press so far. A lot of the analysis is predictable, but Meet The Press did have an interesting fact from Doris Kern Goodwin, historian, in that there's never been a replacement installed as quickly as is anticipated here, if absence of the seat to swearing in time is fully considered.
I suspect that if Barrett is chosen, it will be noted that she was recently confirmed to a Federal appeals court so there's no need for much more. That argument has been made in the past for nominees who are similarly situated.
Much focus is being given to a letter that Ginsburg wrote to a niece wishing for this process to take place after the next Presidential oath of office is administered in January. She dictated the letter only in the last few days, as she knew that death was near. News commentators noted that her hope was to avoid the divineness that's about to emerge.
I can see why that was her wish, and I'm sure she knew that was as forlorn hope. I'll post on it separately, but there's a lesson to be learned with gambling on the outcome of things and longevity both as a personal and national matter. Anyway a person looks at it, something historic is about to happen here, even if the votes to hold a hearing and confirmation (which I suspect is much closer than a person might think) aren't there.
On another, and biographical note, a question was posed on whether Justice Ginsburg was a practicing member of the Jewish faith. It's actually somewhat difficult to tell.
The reason is in part that she was a fairly private person, as many of the Supreme Court justices are. While the religious affiliations of Supreme Court justices are generally know, they're often known only superficially and not always known accurately. For example, for years it was reported that Justice Thomas was an observant conservative Episcopalian, which was true at one time, but he reverted to Catholicism at some point with nobody really noting in in the larger public at the time. Conversely, it's sometimes reported that Justice Sotomayor is Catholic, which is true in the context that she was born into a Catholic family, but it seems very clear that she's nonobservant.
Another part of the reason that's hard to answer is that Judaism is fairly divided in its nature and therefore its difficult to track the degree to which any one person is observant in context. If a person took the view that observant meant observant in the Orthodox context, hardly any actually observant Jewish person in the United States would be counted, for example.
What we know about Justice Ginsburg in this context is that she was raised in an observant household but seems to have become less observant as an adult. She was not allowed to attend the minyan for her late mother when she died, but that frankly may have been because it was conducted in the Orthodox style which would have required ten males to attend. At least as of five years ago she co-authored a text with a Rabbi on heroic women of Passover.
So, as far as the answer to that question, I really don't have one.
FWIW, as its likely to come up, on the current members of the Supreme Court, their religions affiliation is as follows:
John Roberts: Catholic
Clarence Thomas: Catholic, was Episcopalian at the time of his appointment.
Stephne Breyer: Judaism.
Samuel Alito: Catholic
Sonia Sotomayor: Listed as Catholic, but nonobservant in that context.
Elena Kagan: Judaism.
Neil Gorsuch: Episcopalian, but raised Catholic.
Brett Kavanaugh: Catholic.
Overall, this is interesting demographic situation in that both Catholic and Jewish Americans represent minority religious demographics. A majority of Americans are Protestants, with the largest single Protestant denomination in the United States being the Baptists. Therefore, fwiw, in terms of its religious makeup, the Supreme Court is not representative of the American population. Also fwiw, the legal profession is one that has traditionally appealed to minority populations for various reasons.
September 22, 2020
NPR's Politics podcasts discusses an issue in its episode of last night that I've already touched on here, but brings it into sharp focus. That is, Mitch McConnell's long running effort to rebuild a conservative Supreme Court. The same topic is addressed by one of the columnist in the Tribune today.
The basic topic is pretty clear. Conservatives have felt that dating back to the 1950s liberal justices, some of whom were middle of the road appointees who turned to the left after being appointed by Republican Presidents, have undermined the Constitution by making up law to fit their image of what the law should be, rather than follow the letter of the law. That view isn't without merit at all.
The problem has been noted, however, that Republican appointees have not been reliably conservative. We've already dealt with the definitional problem here, but it goes beyond that. Missed on all of that, however, is that the GOP now seems to have a handle on it. McConnell, who has taken on this project as his life's political work, has cooperated with the Federalist Society to find really reliable conservatives to appoint to the bench. This side steps, a bit, I'd note the topic we've already noted about there not being any philosophical conservatives on the bench, in a jurisprudential sense, but that's a topic for some other time. Anyhow, it now appears that conservative appointees are as reliably conservative as liberal appointees are liberal.
Indeed, that's created some of the angst in the political liberal class as it now seems possible that in the near future the answer of the Supreme Court to a lot of questions will be "it's not in the Constitution, take it up with your state legislature", which is something that they fear.
Anyhow, Politics asked the question if conservatives in general, and McConnell in particular, would be willing to sacrifice the Presidency and the Senate in order to achieve this goal. The general feeling is yes.
I agree with that and I think that'll be the goal and the risk. I.e., McConnell will push forward and do whatever it takes to get a vote on a nominee before January, no matter what the risks and implications are. And I don't blame him. Indeed, were the situation the opposite for the Democrats, I think they'd do the same.
I'm less convinced that this means a vote before the election. I think it means a vote before January. Even if its the lame duck Senate that does it, I think they'll do it.
Indeed, there's some logic to waiting until after the election. If the GOP holds on to the Senate its a no harm no foul situation. It'll look the same no matter what, or close to the same no matter what. If Trump holds on to office, it really doesn't matter.
I'm less confident that NPR, however, that they'll have the votes to get this done.
A risk for the Democrats now is that Kamala Harris, who attacked Barrett when she was up for the 7th USCA for being a sincere Catholic, will look bad in the hearings that will be held, if they are. The hearings will put a focus on her in a way she hasn't had yet, and if she comes across in the same fashion, it'll offend Catholic voters pretty deeply, including nominal Catholics and cultural Catholics. Harris has a track record for really acid commentary and she'll have to self restrain, which isn't easy to do.
Justice Ginsburg will lie in repose at the Supreme Court starting tomorrow, and until Friday, when she'll lie in state at the capitol on Friday. She'll be placed at rest at Arlington National Cemetery next week.
September 23, 2020
Senators Romney and Grassley, who had been regarded as possible third and fourth votes to abstain from taking up the question of Justice Ginsburg's replacement this year, have indicated that they will not do that and that they will support taking up the question this year.
Romney went further and noted that liberal angst was due to his "liberal friends" having gotten used to a liberal court over the years, and that he wanted a Supreme Court that decided questions based on the law alone. He further noted that the United States is a center right country and it should have a center right court.
Assuming no surprise defections, this will mean that the GOP will move ahead with Ginsburg's replacement. The remaining questions are who it will be, and whether the confirmation will occur before or after the election.
September 26, 2020
Amy Coney Barrett has been nominated by President Trump to the Supreme Court.
October 3, 2020
October 16, 2020
Hearings are well underway and by all accounts Amy Comey Barrett has accounted herself well in them.
The first day of the hearings were marked by individual opening statements from Senators on the judiciary committee, at least some of which served next to no purpose whatsoever. The opening by aged Senator Patrick Leahy was frankly pathetic. By all accounts Barrett did well in direct examination by the Senators and her stock rose with the general public as a result. She was fairly uniformly measured in her presentation to them, but on at least one occasion eviscerated a Senator who was repeating an already repeatedly asked question, making him look like a fool.
Following this portion of the hearings Sen. Diane Feinstein praised Senator Lindsey Graham for his conduct of the hearings, leading some in California to call for Feinstein's resignation.
It appears a vote on her confirmation, all but assured, will take place next week.
Barrett was rated "well qualified" by the ABA Standing Committee.
October 23, 2020
Judge Barrett's nomination has gone to the Senate floor where it will be voted on next week.
October 27, 2020
Amy Coney Barrett was approved by the U.S. Senate yesterday and administered her oath of office on the same day.
__________________________________________________________________________________
Related threads:
No comments:
Post a Comment